UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


SELECTED    OPINIONS 

of 

LUTHER   S.  DIXON 

and 

EDWARD     G.  RYAN 

Late  Chief  Justices  of  the   Supreme   Court 
of  Wisconsin 


Edited  with 

ANNOTATIONS    HISTORICAL, 
CRITICAL  AND    LEGAL 


By 

GILBERT  E.  ROE 

Of  the  New  York  Bar 


ILLUSTRATED  WITH    PORTRAITS 


COPYRIGHT,  1907, 

BY 
CALLAGHAN  &  COMPANY. 


STATE  JOURNAL  PRINTING  COMPANY, 
PRINTERS  AND  STEREOTYPERS, 
MADISON,  wis. 


PREFACE. 

This  compilation  of  leading  opinions  of  Chief  Justices 
Dixon  and  Byan,  of  the  Wisconsin  Supreme  Court,  was 
prepared  at  the  suggestion  of  some  of  the  members  of  the 
Wisconsin  Society  of  New  York,  who  desired  in  this  man- 
ner to  testify  their  admiration  for  these  great  jurists,  and 
is  now  published  in  the  hope  that  it  will  prove  of  interest 
to  laymen,  as  well  as  to  members  of  the  legal  profession, 
both  in  Wisconsin  and  throughout  the  country. 

The  opinions  themselves  both  in  literary  quality  and 
legal  learning,  rank,  it  is  believed,  among  the  best  of  those 
delivered  by  American  judges,  and  they  admirably  illus- 
trate the  growth  and  development  of  the  jurisprudence  of 
one  of  the  great  Western  States. 

It  is  intended  in  the  note  which  follows  each  case,  to 
give  every  decision  in  which  the  case  has  been  cited  and  to 
indicate  whether  the  reference  to  it  was  with  approval  or 
disapproval,  and  where  several  points  are  involved  in  the 
case  to  also  indicate  the  precise  point  to  which  it  was  sub- 
sequently cited.  These  notes  enable  anyone  to  form  some 
judgment  of  the  value  of  the  opinions  as  precedents  and 
their  influence  in  shaping  the  law  of  the  country,  while 
they  direct  the  lawyer  to  the  sources  from  which  he  can 


756.183 


Preface. 

determine  the  present  state  of  the  law  upon  any  of  the 
subjects  covered  in  the  opinions  included  in  this  compila- 
tion. In  this  respect  it  is  hoped  that  this  volume  will  prove 
of  practical  use  to  the  members  of  the  legal  profession. 
Such  historical  information  has  also  been  added  concern- 
ing the  various  cases  as  seemed  to  be  necessary  to  a  correct 
understanding  of  the  case. 

No  effort  has  been  made  to  confine  the  opinions  to  any 
particular  question  or  class  of  questions;  but  on  the  con- 
trary the  endeavor  has  been  to  cover  as  wide  a  range  of  im- 
portant subjects  as  possible.  In  selecting  the  opinions  to 
be  published,  the  editor  has  been  embarrassed  only  by  the 
wealth  of  material  from  which  to  choose,  and  while  it  is 
doubtless  true  that  different  selections  might  have  been 
made  with  value  to  the  work,  it  is  certain  that  each  of  the 
opinions  here  presented  possesses  a  distinctive  interest  and 
deserves  high  rank  in  legal  literature. 

Grateful  acknowledgment  is  made  to  numerous  friends, 
both  laymen  and  members  of  the  legal  profession,  for  val- 
uable suggestions  and  assistance  in  the  preparation  of  this 
work  and  particularly  to  Hon.  Eobert  G.  Siebecker,  of  the 
Wisconsin  Supreme  Court,  and  Hon.  Hugh  Kyan,  of  Mil- 
waukee, the  son  of  Chief  Justice  Ryan,  and  Mr.  Henry  C. 
Davis,  of  New  York  City.  G.  E.  R. 

New  York,  December,  1906. 


TABLE  OF  CASES  AND  CONTENTS. 


BIOGRAPHICAL  SKETCH  OF  CHIEF  JUSTICE  DIXON 1 

OPINIONS  OF  CHIEF  JUSTICE  DrxoN  11-245 

PHELPS  v.  ROONEY  11 

Question  of  what  constitutes  homestead — Doctrine 
of  principal  use — What  should  be  the  test. 

KNOWLTON  v.  SUPERVISORS  OF  ROCK  COUNTY  33 

What  constitutes  uniform  taxation — Power  of  legis- 
lature to  tax  land  in  a  village  at  a  different  rate 
when  used  for  agricultural  purposes. 

VON  BAUMBACH  v.  BADE  51 

Alteration  of  remedies  as  impairing  obligation  of 
contracts — Constitutionality  of  such  legislation. 

ABLEMAN  v.  BOOTH   69 

Fugitive   Slave   Law — Constitutionality. 

TOWN  OF  MILWAUKEE  v.  CITY  OF  MILWAUKEE 102 

Reorganization  of  Town  of  Milwaukee  by  the  legis- 
lature— Land  belonging  to  town  incorporated  in 
the  city — Power  of  legislature  to  deprive  a  mu- 
nicipal corporation  of  its  property. 

HASBROUCK  v.  CITY  OF  MILWAUKEE  126 

Power  of  municipality  to  issue  bonds  for  the  pur- 
pose of  constructing  a  harbor  when  authorized 
by  the  legislature — Power  must  be  specifically 
granted. 

KELLOGG  v.  THE  CHICAGO  &  NORTHWESTERN  RAILWAY  . .          145 
Negligence  of  railroad  in  leaving  dry  grass  and 
stubble  on  its  right  of  way — Proximate  cause — 
Contributory  negligence. 


Table  of  Cases  and  Contents.  vi 

HOYT  v.  THE  CITY  op  HUDSON"  202 

Responsibility  of  municipality  for  damages  from 
surface  water  caused  by  grading — Rules  as  to 
surface  water  and  water  courses. 

SCTTON  v.  TOWN  OF  WAtrvvATOSA 215 

Contributory  negligence — Violation  of  Sunday  law 
no  defense  to  an  action  for  injuries  received  on 
that  day  in  consequence  of  defendant's  negli- 
gence. 

MOUSE  v.  THE  HOME  INSURANCE  COMPANY  232 

Citizen  of  foreign  state  may  estop  himself  from 
setting  up  right  of  removal  to  Federal  court  by 
a  previous  stipulation  to  that  effect. 

BlOGBAPHICAL  SKETCH  OF  CHIEF  JUSTICE  RYAN 247 

OPINIONS  OF  CHIEF  JUSTICE  RYAN 259-556 

ATTOBNEY  GENEBAL  v.  THE  RAILROAD   259 

Regulation  of  rates — Original  jurisdiction  of  Wis- 
consin Supreme  Court — Power  to  issue  manda* 
mus  in  certain  cases — Common  law  and  equity 
writs — Information  of  attorney  general — Public 
nuisance — Reserve  power  in  state  constitution — 
Corporation  charters,  contracts — The  Dartmouth 
College  Case — Violations  of  charters  enjoined, 
etc. 

CRAKEB  v.  CHICAGO  &  NOBTH WESTERN  RAILWAY 383 

Rules  of  damages — Compensatory  and  punitive — 
Mental  anguish  —  Respondent  superior  —  Rail- 
road's duty  to  passengers. 

SAWYEB  v.  DODGE  COUNTY  INSUBANCE  COMPANY 401 

Insurance  policies — Insurable  interests — Blanket 
policies — Wager  policies — Ungrown  wheat  on  un- 
bought  land  insurable,  etc. 

STATE  v.  DOYLE 417 

Power  of  legislature  to  impose  conditions  on  for- 
eign corporations — Waiver  of  right  to  remove 
suit  from  state  to  Federal  court  a  valid  condi- 
tion— Voluntary  waiver  and  denial  by  state  dis- 


vii  Table  of  Cases  and  Contents. 

tinguished — Morse  v.  Ins.  Co.  commented  on 
and  distinguished — Mandamus  issued  to  secre- 
tary of  state  to  cancel  license  of  foreign  insur- 
ance company — Merely  ministerial  office — Powers 
of  Federal  and  state  courts — Review  of  Eleventh 
Amendment. 

DEEDRICH  v.  NOBTHWESTEBN  UNION  RAILWAY 462 

Riparian  rights — Fee  to  the  bed  of  Lake  Michi- 
gan— Land  built  out  into  Lake  Michigan — In 
whom  the  fee — Exercise  of  eminent  domain  by 
railroad — Piers  built  in  aid  of  navigation,  etc. 

MAESH  v.  SUPERVISORS  OF  CLARK  COUNTY 485 

Taxes — Assessment — Assessors,  their  duties — Inva- 
lidity of  taxes  on  irregular  assessment — Uniform- 
ity in  taxation,  etc. 

DORSET  v.  P.  &  C.  CONSTRUCTION  COMPANY 502 

Negligence  of  railroad  in  building  collateral  struc- 
tures close  to  track — Contributory  negligence — 
Knowledge  of  employee — Assumption  of  risk. 

WIGHT  v.   RINDSKOPF    515 

Internal  Revenue  Law  commented  on — Immorality 
of — Power  of  revenue  officers  to  compound  of- 
fenses— Accomplice  turning  state's  evidence — 
Invalidity  of  contract  with  such  accomplice  for 
professional  services — Duties  of  a  lawyer — Right 
of  witness  as  such  to  counsel. 

PRTDEAUX  v.  CITY  OF  MINERAL  POINT  541 

Principal  and  agent — Imputation  of  negligence — 
Contributory  negligence — Public  and  private  con- 
veyances distinguished — Responsibility  of  town 
for  defective  condition  of  highways,  etc. 

CURRY  v.  C.  &  N.  W.  RY.  Co 557 

Railroads  —  Fences  —  Contributory  Negligence  — 
Statutes  as  to  liability  of  railroad  companies  for 
injuries  to  animals  from  failure  to  fence,  held 
cumulative — Contributory  negligence  a  defense 
in  all  such  cases — When  question  of  plaintiff's 
negligence  for  the  jury. 


ILLUSTRATIONS. 

POBTRAIT  OF  CHIEF  JUSTICE  DIXON Frontispiece 

POBTBAIT    OF    CHIEF    JUSTICE   RYAN 247 


LIFE  OF 

CHIEF  JUSTICE  DIXON. 


SKETCH  OF  THE  LIFE  AND  SERVICES  OF 
CHIEF  JUSTICE  DIXON  AS  CONTAINED  IN 
THE  MEMORIAL  PRESENTED  TO  THE  WIS- 
CONSIN SUPREME  COURT  ON  HIS  DEATH. 

At  a  meeting  held  at  the  state  capitol  of  Wisconsin  on 
the  19th  day  of  December,  1891,  to  take  action  upon  the 
death  of  Honorable  Luther  S.  Dixon,  formerly  chief  jus- 
tice of  the  supreme  court  of  Wisconsin,  a  committee  was 
appointed  to  prepare  a  memorial  to  be  presented  to  the 
court. 

On  the  29th  day  of  December,  1891,  the  Hon.  Geo.  H. 
l^oyes,  Esquire,  on  behalf  of  the  committee  addressed  the 
court  and  presented  the  memorial  hereinafter  set  out, 
which  not  only  contains  the  leading  events  in  the  life  of 
Chief  Justice  Dixon,  but  also  testifies  to  the  estimation 
in  which  he  was  held  by  the  bench  and  bar  of  Wisconsin. 
The  following  is  the  memorial  presented : 

Luther  S.  Dixon,  for  over  forty  years  prominent  in  the 
legal  profession,  and  during  more  than  fifteen  years  of 
most  eventful  history  the  chief  justice  of  the  supreme 
court  of  this  state,  died  at  his  residence  in  Milwaukee  on 
the  6th  day  of  the  present  month. 
1 


Life  of  Chief  Justice  Dixon.  2 

Among  the  many  distinguished  names  on  the  roll  of 
our  profession  in  Wisconsin,  none  shines  with  brighter 
luster  than  his ;  none  is  more  prominently  associated  with 
its  judicial  history,  and  he  has  graven  deep  and  lasting 
lines  of  influence  upon  the  jurisprudence  of  the  state. 
Among  our  great  jurists  none  will  be  longer  remembered 
for  the  qualities  that  command  admiration  and  kindle 
warm  attachment  than  he,  whose  manly  personality  won 
the  regard  and  confidence  of  men  in  every  walk  of  life. 
To  the  members  of  the  bar  of  the  supreme  court  whose 
work  reaches  back  to  the  period  of  his  service  there  re- 
mains a  memory  of  one  who  presided  with  eminent  abil- 
ity, with  a  befitting  dignity  so  blended  with  kindness,  pa- 
tience, consideration  for  every  advocate  who  appeared  be- 
fore him  as  to  make  him  loved  and  honored  by  the  whole 
brotherhood  of  the  bar.  To  all  these  the  announcement  of 
his  death  brings  a  deep  sorrow.  The  world  seems  more 
lonely  when  so  manly,  so  strong  and  helpful,  and  so  gen- 
tle a  spirit  passes  out  of  it;  and  our  profession  suffers  a 
loss,  the  sense  of  which  will  long  abide. 

We,  of  the  State  Bar  Association,  at  a  meeting  called 
for  the  purpose,  in  behalf  of  our  brethren  throughout  the 
state,  and  the  people  at  large,  unite  in  the  expression  of 
our  sorrow,  and  would  offer  our  tribute  of  veneration  and 
affection  for  one  whose  fame  as  a  jurist,  we  well  know,  is 
above  need  of  eulogy. 

Luther  S.  Dixon  was  born  in  Milton,  in  the  valley  of 
the  Lamoille,  in  the  state  of  Vermont,  June  17,  1825,  of 
the  sturdy  stock  of  the  New  England  farmers  of  the  early 
part  of  the  century.  After  laying  the  foundation  of  a 
good  English  education  in  common  schools  and  academies, 
he  entered  the  military  school  at  Norwich  in  that  state, 
then  under  the  conduct  of  instructors  of  marked  ability. 


3  Life  of  Chief  Justice  Dixon. 

There  he  ranked  high  as  a  cadet,  and  was  an  excellent 
scholar  in  Latin.  He  received  the  thorough  instruction, 
severe  mental  and  physical  discipline  so  valuable  in  form- 
ing character.  After  teaching  school  to  procure  the  means 
of  prosecuting  his  studies,  he  entered  upon  the  reading  of 
law  in  the  office  of  Honorable  Luke  P.  Poland,  then  of 
high  standing  among  the  lawyers  of -Vermont.  He  was 
admitted  to  the  bar  in  1850.  The  West  was  then  the  in- 
viting field  to  the  young  men  of  New  England ;  and  Wis- 
consin was  regarded  as  well  out  on  the  frontier.  The 
young  lawyer  established  himself  at  Portage  in  this  state, 
about  the  year  1851,  and  entered  upon  the  practice.  His 
sterling  qualities  drew  him  clients,  and  he  was  twice 
elected  district  attorney  of  Columbia  county,  serving  with 
zeal  and  fidelity.  In  1858,  upon  the  retirement  of  Hon- 
orable A.  L.  Collins,  he  was  appointed  judge  of  the  Ninth 
judicial  circuit,  the  duties  of  which  office  he  discharged 
with  such  marked  ability  as  to  give  great  satisfaction  to 
the  bar,  then  composed  of  some  of  the  most  distinguished 
and  able  practitioners  of  the  state. 

The  death  of  the  eminent  Chief  Justice  Edward  V. 
Whitpn  in  1859  cast  upon  Governor  Randall,  then  the  ex- 
ecutive, the  duty  of  appointing  a  successor  to  hold  office 
until  the  vacancy  could  be  filled  by  election.  He  selected, 
with  the  general  approbation  of  bar  and  people,  Judge 
Dixon.  The  appointee  was  then  but  thirty-three  years  of 
age;  and  his  previous  professional  and  judicial  experi- 
ence— the  latter  less  than  a  year  on  the  circuit — though 
full  of  promise,  had  hardly  foreshadowed  his  great  abili- 
ties. But,  assuming  his  seat  April  19,  1859,  he  entered 
upon  a  career  which  soon  made  plain  that  he  was  born  for 
a  judge.  He  loved  the  law  as  a  study.  He  loved  the 
right,  and  with  pure  heart  sought  to  find  justice.  En- 


Life  of  Chief  Justice  Dixon.  4 

dowed  by  nature  with  a  strong,  vigorous  mind,  native 
sense  and  clear  intuitions,  with  great  capacity  for  mental 
labor,  the  power  to  grasp  and  analyze,  the  faculty  to 
quickly  develop  a  subject  and  perceive  the  point  on  which 
a  controversy  depended,  he  studied  hard,  steadily  grew, 
and  while  yet  a  young  man  was  recognized  among  the  able 
judges  of  his  time ;  his  fame  extending  beyond  the  state  in 
a  constantly  widening  circle.  He  was  happily  constituted 
for  judicial  labor.  If  there  was  aught  in  him  of  the  par- 
tisan it  was  completely  subordinated  in  the  judge.  Free 
from  all  bias  or  prejudice,  his  mind  serenely  sought  the 
right  of  the  matter,  never  swayed,  even  unconsciously,  by 
thought  of  popularity  or  personal  consequences.  No  judge 
could  more  fully  appreciate  the  words  of  the  great  Mar- 
shall, that  "judicial  power  is  never  exercised  for  the  pur- 
pose of  giving  effect  to  the  will  of  the  judge,  but  always 
for  the  purpose  of  giving  effect  to  the  will  of  the  law." 
Devoid  of  what  is  called  political  ambition,  he  declined 
advancement  in  those  fields  so  inviting  to  most  men — 
in  which  he  was  admirably  endowed  to  succeed — and 
wrought  in  th§  more  laborious  and,  in  a  sense,  less  con- 
spicuous labors  of  the  bench.  He  was  four  times  elected 
to  his  exalted  place.  Those  who  in  honest  difference  op- 
posed his  first  election  were  his  warm  supporters  ever 
after,  and  his  later  elections  were  with  virtual  unanimity. 
He  retired  voluntarily  in  1874  in  the  midst  of  his  term, 
to  the  general  regret  of  bench,  bar,  and  people,  for  he  then 
stood  admittedly  among  the  foremost  judges  in' the  Union. 
His  judicial  work,  to  which  he  gave  the  best  years  of 
his  life,  will  endure.  His  decisions  will  ever  attract  and 
charm  the  profound,  for  they  were  wise  expositions  of  the 
law,  professional  in  learning,  logical  in  strength,  and  never 
wanting  in  an  unstudied  eloquence  and  beauty  of  expres- 


5  Life  of  Chief  Justice  Dixon. 

sion.  Who  can  read  them  without  being  impressed  with 
the  virtues  of  the  man — his  originality,  sincerity,  honesty, 
love  of  justice  ?  The  manliness  and  sweetness  of  his  na- 
ture are  reflected  in  his  written  judgments. 

The  judicial  temper  and  quality  of  his  mind  were  ad- 
mirable. When  he  had  reached  his  conclusion  he  had  the 
strength  of  conviction  of  an  earnest,  honest  soul,  and 
naught  could  swerve  him  but  to  show  him  his  error.  And 
no  man  was  freer  from  mere  pride  of  opinion.  •  In  the 
texture  of  his  firmness  was  no  coarse  fibre  of  obstinacy. 
With  noble  candor  he  reviewed  his  own  decisions,  frankly 
acknowledged  his  own  errors,  pointing  them  out  himself 
where  others  had  not  found  them.  Herein  his  largeness 
of  mind  was  exhibited.  He  reached  his  conclusions  after 
long,  patient  investigation,  his  mind  open  to  light  from 
every  quarter.  He  listened  considerately  to  every  argu- 
ment with  attentiveness  that  encouraged  the  advocate  to 
do  his  best.  He  weighed  well,  reviewed  carefully,  know- 
ing always  how  fallible  is  human  judgment,  how  danger- 
ous summary  decision.  None  who  argued  causes  before 
him  ever  felt  for  a  moment,  whatever  the  result,  that  the 
argument  had  been  unheeded.  Some  of  the  decisions 
which  he  wrote,  or  in  which  he  concurred,  or  from  which 
he  dissented,  bore  upon  controversies  which  stirred  the 
deepest  popular  feeling  at  a  time  when  the  bands  of  Union 
strained  to  their  utmost  tension  were  about  to  snap  asun- 
der. Yet,  then,  however  emphatic  the  dissent  of  those  in 
adverse  interest  or  belief,  his  sincerity  or  purity  of  motive 
was  never  questioned.  It  may  truly  be  said  that  time  has 
vindicated  his  judgment,  or  at  least  that  all  have  accepted 
as  the  law  of  the  land  some  of  his  rulings  which  at  the 
time  evoked  the  most  dissent.  How  fearless  he  was  in 
following  his  convictions,  with  what  moral  courage  he  ad- 


Life  of  Chief  Justice  Dixon.  6 

hered  to  them,  even  to  the  alienation  of  political  friends 
and  the  peril  of  his  seat,  then  but  recently  assumed,  all 
will  remember  who  but  recall  the  intense  excitement  that 
culminated  in  the  great  civil  war. 

The  virtues  above  ascribed  to  him  are  common  to  our 
American  judges,  and  ever  conspicuous  on  the  bench  which 
he  so  long  adorned.  In  him  they  were  so  manifest  in  the 
amplitude  of  his  understanding,  the  simplicity,  strength 
and  perfect  balance  of  his  character  as  to  mark  him  for 
distinction  on  any  bench  or  in  any  group  of  the  great  men 
of  our  profession. 

He  came  to  the  bench  at  an  important  and  critical  time 
in  the  history  of  state  and  nation.  Questions  involved  in 
the  contentions  of  political  parties  must  be  decided  and 
the  judgments  of  courts  could  but  provoke  fierce  criticism. 
Questions  were  pending  which  directly  affected  the  inter- 
ests of  large  classes  of  citizens,  arising  out  of  the  early 
efforts  in  railway  development,  and  the  involvement  in 
that  behalf  of  public-spirited  men.  Fortunes  and  even 
homes  were  imperiled.  Decisions  were  demanded  favora- 
ble to  those  in  jeopardy,  and  judges  were  threatened  with 
the  displeasure  of  masses  if  decisions  gave  disappoint- 
ment. The  then  recent  adoption  of  the  Code  had  dis- 
placed the  ancient,  familiar  practice,  and  thrown  much 
labor  on  the  court  in  settling  the  new  procedure.  New 
and  important  questions  sprang  up  in  the  period  of  rapid 
development  during  and  following  the  war;  and  the 
growth  of  the  state  largely  increased  the  labors  of  the 
court.  Chief  Justice  Dixon  and  his  illustrious  associates 
in  that  formative  period  worked  with  noble  diligence  for 
the  welfare  of  the  state.  "Looking  far  behind  them  and 
far  before  them"  they  wrought  with  master  hands  in  build- 
ing a  system  of  jurisprudence,  mild  and  benign,  of  which 


7  Life  of  Chief  Justice  Dixon. 

the  materials  were  the  excellences  of  the  common  law, 
the  enlightenment,  progress,  and  humanity  of  later  times 
and  legislation.  Says  the  Majestic  Webster:  "Whoever 
labors  on  this  edifice  with  usefulness  and  distinction, 
whoever  clears  its  foundations,  strengthens  its  pillars, 
adorns  its  entablatures,  or  contributes  to  raise  its  august 
dome  higher  in  the  skies,  connects  himself  in  name  and 
fame  of  society."  The  work  of  Chief  Justice  Dixon  and 
his  eminent  co-laborers  on  the  bench,  it  may  truly  and  we 
hope  not  inappropriately  be  said,  placed  our  supreme  court 
well  forward  among  the  strong,  able  tribunals  of  the  coun- 
try. His  decisions  embraced  in  twenty-six  volumes  of 
our  court  Reports  constitute  a  record  imperishable,  and 
his  ennobling  influence  upon  the  body  of  our  law  will  be 
felt  and  acknowledged,  as  it  now  is,  in  the  long  future. 
In  private  life  stainless,  in  the  domestic  relations  and 
those  of  the  neighbor  and  citizen  irreproachable,  he  lived 
among  us.  In  social  intercourse,  when  professional  toil 
could  for  a  brief  space  be  laid  aside,  it  was  pleasure  to 
meet  him.  Of  commanding  presence,  tall  but  well  formed, 
with  a  natural  grace  of  deportment  perfected  by  his  early 
military  education,  he  bore  nature's  stamp  of  superiority. 
But  he  was -unostentatious,  simple  and  direct  in  manner 
as  a  child,  cordial  and  generous ;  and  there  was  something 
in  him  that  won  and  held  friends  and  gave  him  wide  but 
unsought  popularity.  He  had  the  sparkling  wit  without 
trace  of  bitterness,  the  buoyancy  of  spirit  and  keen  sense 
of  humor,  so  often  observable  in  great  lawyers.  An 
agreeable  converser,  attent  and  sympathetic  listener,  he 
was  the  charm  of  a  social  circle.  His  kindly  grace  put 
all  at  their  ease,  and  he  could  be  interested  in  all  with 
whom  he  came  in  contact.  His  career  after  he  left  the 
bench  was  in  keeping  with  his  noble  work  upon  it.  He 


Life  of  Chief  Justice  Dixon.  8 

remained  true  to  his  profession  at  the  last,  though  political 
honors  were  within  his  reach.  Avoiding  all  notoriety, 
shunning  all  display,  he  modestly  went  about  his  work,  at 
once  assumed  high  rank  at  the  bar,  and  enjoyed  the  re- 
wards of  extensive  and  important  practice.  His  health 
forced  him,  some  years  ago,  to  leave  a  large  and  lucrative 
business  here,  and  seek  the  higher  altitudes  and  rarer  at- 
mosphere of  the  western  mountains.  Thereby,  although 
he  retained  his  residence  in  Milwaukee  and  considered  this 
state  his  home,  the  profession  here  lost  for  the  most  part 
his  delightful  companionship  and  his  powerful  aid.  It 
was  almost  as  an  exile  that  he  went  to  Colorado,  banished 
by  the  rigor  of  our  climate.  He  went  at  a  period  of  life 
when  men  are  not  wont  to  form  new  attachments,  and,  if 
engrossed  in  care,  are  unlikely  to  attract  new  friends.  De- 
pressed by  suffering,  for  his  asthmatic  ailment  deprived 
him  of  the  blessedness  of  refreshing  sleep,  the  cheerful 
ness  which  was  one  of  the  charms  of  his  nature  might  well 
be  quenched.  But  he  entered  at  once  upon  an  extensive 
practice,  and  amid  the  strife  of  constant  legal  controversy 
he  came  to  be  loved  by  his  professional  brethren  there  no 
less  than  here.  In  the  resolutions  passed  at  a  large  meet- 
ing of  the  bar  in  Denver,  called  when  the  announcement 
of  his  death  reached  them,  they  expressed  in  words  of  ten- 
derness their  "reverent  respect  and  heartfelt  affection." 

He  returned  to  his  family  in  Milwaukee  a  few  weeks 
since  after  a  professional  visit  to  Washington,  so  worn 
out  by  the  long  struggle  with  the  malady  which  finally 
overbore  his  superb  physical  constitution,  that  age  and  the 
hand  of  death  seemed  visibly  upon  him.  A  short  illness 
brought  the  last  great  change,  and  after  a  life  of  unsullied 
honor,  faithful  service  in  the  highest  field  of  usefulness, 
with  a  lasting  fame  firmly  assured,  life's  work  well  done, 


9  Life  of  Chief  Justice  Dixon. 

his  body  sleeps  in  the  soil  of  the  state  he  served  so  well, 
near  the  scene  of  his  judicial  labors  and  by  the  graves  of 
his  children.  His  immortal  part,  with  God  who  gave  and 
imbued  it  with  much  love  of  justice,  such  high  intelli- 
gence, such  sweetness  and  charity,  now,  as  we  devoutly 
trust,  sees  the  right,  not  in  the  crepuscular  dimness  of 
human  imperfection  but  in  the  clearness  of  eternal  day. 

To  us  who  survive  him,  and  to  the  long  line  who  shall 
follow,  his  character  as  it  shall  live  in  memory  and  in  his 
enduring  labors  will  ever  be  an  exquisite  picture  of  the  pro- 
found lawyer,  the  good  man  and  the  just. 

To  his  grieving  widow  and  family,  whose  sorrow  cannot 
be  lightened  by  being  so  largely  shared,  we  extend  our 
heartfelt  sympathy.  We  know,  too,  how  profound  a  sor- 
row his  death  has  brought  to  the  members  of  the  court  all 
of  whom  knew  him  so  well  in  life,  and  especially  to  those 
veterans  in  service,  "still  shining  in  use,"  with  whom  he 
so  long  labored.  To  them  as  to  us  is  left  but  the  mourn- 
ful pleasure  of  speaking  his  praise. 

"Mingling  our  sorrows  and  regrets"  with  those  of  the 
court,  we  ask  that  this  memorial — faintly  as  it  portrays 
our  sense  of  his  worth  and  his  service,  and  feebly  as  it 
expresses  our  affection  and  our  sorrow — may  be  spread 
upon  the  records  of  the  supreme  court. 

EDWIN  E.  BRYANT, 
MOSES  HOOPEK, 
GEO.  A.  NOTES, 
A.  A.  JACKSON, 
JAMES  B.  TAYLOB. 

Committee. 


SELECTED  OPINIONS 

OF 

CHIEF  JUSTICE  DIXON. 


Fhelps  v.  Booney,  et  al. 

June  Term,  1859. 
(9  Wis.  70.) 

Sections  51  and  52,  chap.  102,  Wisconsin  Revised  Stat- 
utes 1849,  in  force  at  the  time  of  this  decision,  provided: 

"Sec.  51.  A  homestead  consisting  of  any  quantity  of 
land  not  exceeding  forty  acres  used  for  agricultural  pur- 
poses, and  the  dwelling  house  thereon,  and  its  appur- 
tenances, to  be  selected  by  the  owner  thereof,  and  not  in- 
cluded in  any  town  plot,  or  city,  or  village;  or  instead 
thereof,  at  the  option  of  the  owner,  a  quantity  of  land  not 
exceeding  in  amount  one-fourth  of  an  acre,  being  within  a 
recorded  town  plot,  or  city  or  village,  and  the  dwelling 
house  thereon,  and  its  appurtenances,  owned  and  occupied 
by  any  resident  of  the  state,  shall  not  be  subject  to  forced 
sale  on  execution,  or  any  other  final  process  from  a  court, 
for  any  debt  or  liability  contracted  after  the  first  day  of 
January,  in  the  year  one  thousand  eight  hundred  and 
forty-nine. 

"Sec.  52.  Such  exemption  shall  not  affect  any  laborer's 
or  mechanic's  lien,  or  extend  to  any  mortgage  thereon,  law- 
fully obtained;  but  such  mortgage,  or  other  alienation  of 


Opinions  of  Chief  Justice  Dixon.  12 

such  land  by  the  owner  thereof,  if  a  married  man,  shall  not 
be  valid  without  the  signature  of  the  wife  to  the  same." 

The  majority  of  the  court  in  this  case  held  that  a  build- 
ing constructed  externally  and  internally  in  the  style  of  a 
store  and  designed  for  use  as  a  store,  except  that  the  second 
and  third  stories  were  finished  off  into  rooms  for  use  as  a 
dwelling  and  were  and  had  been  used  by  defendant, 
Rooney,  and  his  family  as  a  dwelling  house  at  the  time 
the  mortgage  in  question  was  given,  was  a  homestead  within 
the  meaning  of  the  above  statute,  and  that  the  mortgage, 
therefore,  which  defendant  Rooney  had  given  on  the  prop- 
erty, not  being  signed  by  his  wife,  was  void.  From  this 
position  Chief  Justice  Dixon  vigorously  dissented. 

The  following  are  the  propositions  of  law  announced  by 
Chief  Justice  Dixon  in  his  dissenting  opinion : 

That  the  words  "homestead"  and  "dwelling  house,"  in 
their  natural  and  ordinary  import,  cannot  be  con- 
strued to  embrace  the  building  above  described;  that 
these  words  are  used  in  the  statute  in  their  plain  and 
obvious  signification,  and  not  as  synonymous  with  the 
mere  general  terms  "habitation,"  "residence,"  "home" 
or  "abode." 

That  the  52d  section  under  which  the  defense  is  made 
in  this  action,  is  a  disabling  act  and  should  be  strictly 
construed  in  this  case. 

That  if  the  effect  given  to  the  "exemption  law"  in  this 
case  by  the  majority  of  the  court  be  that  which  the 
legislature  intended,  then  the  law  to  that  extent  vio- 
lates section  9,  article  1,  of  the  constitution,  which 
provides  that  "every  person  is  entitled  to  a  certain 
remedy  in  the  laws,  *  *  *  •  he  ought  to  obtain 
justice  freely  *  *  *  completely  and  without  de- 


13  Phelps  v.  Rooney,  et  ah 

nial,"  etc.  It  is  also  repugnant  to  the  requirement 
of  section  17,  article  1,  of  the  constitution,  that  "the 
privilege  of  the  debtor  to  enjoy  the  necessary  comforts 
of  life  shall  be  recognized  by  wholesome  laws  exempt- 
ing a  reasonable  amount  of  property  from  seizure  or 
sale.'" 

That  these  two  sections  must  be  construed  together  and 
are  intended  to  guard  the  rights  and  interests  of  both 
debtor  and  creditor. 

It  is  a  well  settled  rule  of  constitutional  construction, 
that  every  affirmative  prescription  implies  a  negative 
of  everything  contrary  to,  or  inconsistent  with  it,  and 
section  17  above  quoted,  therefore,  by  necessary  im- 
plication, denies  to  the  legislature  the  power  to  pro- 
•tect  the  debtor  in  the  enjoyment  of  those  things  which 
are  not  of  the  necessary  comforts  of  life,  or  to  exempt 
an  unreasonable  amount  of  property  or  to  enact  laws 
unwholesome  in  their  nature  and  tendencies  to  secure 
the  privileges  of  the  debtor. 

The  power  and  duty  of  the  courts,  in  proper  cases  to 
construe  and  give  effect  to  these  sections  of  the  con- 
stitution is  as  unquestionable  as  in  any  other  case  of 
legislative  usurpation. 

The  presumption  is  always  that  the  legislature  has  not 
intended  to  infringe  the  provisions  of  the  constitution, 
and  as  by  that  instrument  the  legislature  had  no  power 
to  exempt  "stores"  or  other  places  purely  or  princi- 
pally devoted  to  trade  or  business,  and  as  the  act  pre- 
scribing exemptions  does  not  provide  that  such  prop- 
erty should  be  exempt,  but  on  the  contrary  its  lan- 
guage indicates  that  which  is  entirely  different,  an 
intention  to  exempt  it  cannot  be  inferred  nor  can  such 
effect  be  given  to  the  act. 


Opinions  of  Chief  Justice  Dixon.  14 

DIXON,  Chief  Justice.  The  question  involved  in  this 
case  is  of  very  great  importance,  not  only  to  the  parties  in 
interest,  but  as  establishing  the  proper  construction  of  the 
statute  under  consideration.  It  is  one  affecting  the  gen- 
eral interest  of  society  as  much,  or  more  perhaps,  than  any 
other  single  question  which  could  arise  at  this  time;  and 
disagreeing,  as  I  do,  entirely  in  the  conclusions  to  which 
the  majority  of  the  court  have  arrived,  I  feel  it  my  duty 
to  state  some  of  the  reasons  for  my  so  doing.  The  facts 
in  the  case  are  stated  as  fully  in  the  opinion  of  the  court 
as  I  would  desire,  excepting  in  two  or  three  particulars; 
but  believing  that  the  report  of  the  case  will  contain  a  full 
statement  of  them,  as  well  as  the  very  able  argument  and 
points  made  by  the  appellant's  counsel,  I  will  not  here  at- 
tempt to  supply  them. 

In  my  opinion  the  question  is  not  so  much  one  of  doubt 
or  ambiguity  as  to  the  general  scope  or  purport  of  the 
statute,  as  one  regarding  the  meaning  to  be  attached  to 
the  word  "homestead,"  and  "dwelling  house."  These  are 
words  of  very  frequent  and  familiar  use,  and  in  ordinary 
language  have,  or  ought  to  have,  a  fixed  and  definite  mean- 
ing, which  would  convey  nearly  the  same  ideas  to  the  mind 
of  every  person  reading  them,  or  hearing  them  spoken. 
For  myself,  I  have  no  doubt  that  they  have  such  meaning, 
and  for  the  purpose  of  my  argument,  I  shall  assume  that 
they  have;  that  being  a  proposition  which  I  cannot  dis- 
cuss. Common  sense  will  readily  teach  every  man 
whether  I  am  right  or  -wrong  in  this  assumption.  Upon 
its  correctness  the  truth  or  falsity  of  my  conclusions  will  in 
a  measure  depend. 

Whatever  abstruse  or  technical  rules  may  heretofore 
have  been  laid  down  and  followed  for  the  purpose  of  giv- 


15  Phelps  v.  Rooney,  et  al. 

ing  construction  to  statutes  or  other  instruments,  I  under- 
stand that  it  has  now  become  the  settled  and  universal 
rule,  sanctioned  by  the  highest  authority,  that  whenever 
words  of  a  general  nature  occur  in  a  statute,  or  other  in- 
strument, that  they  are  to  be  understood  according  to  their 
natural  and  obvious  import,  unless  such  meaning  is  clearly 
repugnant  to  the  intention  of  the  framers,  or  would  lead 
to  great  inconvenience  or  absurdity. 

In  Jones  v.  Harrison,  6  Exch.  R.  327,  Parke  B.,  says : 
"The  rule  which  the  courts  have  constantly  acted  on  of 
late  years,  in  construing  acts  of  parliament,  or  other  in- 
struments, is  to  take  the  words  in  their  ordinary  gram- 
matical sense,  unless  such  construction  would  be  obviously 
repugnant  to  the  intention  of  the  framers  of  the  instru- 
ment, or  would  lead  to  some  other  inconvenience  or  ab- 
surdity." 

"The  current  of  authority  at  the  present  day,"  says 
Bronson,  J.,  in  Waller  v.  Harris,  20  Wend.  555,  "is  in 
favor  of  reading  statutes  according  to  the  natural  and 
most  obvious  import  of  the  language,  without  resorting  to 
subtle  and  forced  constructions  for  the  purpose  of  either 
limiting  or  extending  their  operation.  Courts  cannot  cor- 
rect what  they  may  deem  either  excesses  or  omissions  in 
legislation,  nor  relieve  against  the  occasional  harsh  opera- 
tion of  statutory  provisions,  without  the  danger  of  doing 
vastly  more  mischief  than  good." 

"The  fundamental  reason  of  the  rule,"  says  Sedgwick 
(Sedgwick  on  Statutory  Law,  page  261),  "is  that  unless 
the  courts,  as  a  general  thing,  construe  language  in  the 
same  sense  in  which  it  was  used  by  the  legislature,  that 
is,  according  to  its  ordinary  and  natural  import,  it  would 
be  in  vain  to  attempt  to  preserve  any  harmony  between 


Opinions  of  Chief  Justice  Dixon.  16 

these  two  great  co-ordinate  branches  of  government;  and 
the  contrary  doctrine  would  open  the  door  to  intolerable 
looseness  of  construction." 

It  is  for  the  purpose  of  applying  these  principles  that 
I  assume  as  the  legislature  did,  and  as  every  one  must,  that 
the  words  in  question  have  a  natural  and  generally  ac- 
cepted signification.  Lexicographers  agree  in  denning  the 
word  homestead,  primarily  and  naturally  to  mean,  the 
place  of  the  house,  the  inclosure  or  ground  immediately 
connected  with  the  house  or  mansion;  not  the  house  or 
dwelling  itself,  but  the  place  of  or  for  it;  the  ground  or 
land  on  which  it  stands,  and  which 'is  directly  connected 
with  it.  It  is  therefore  necessary  to  the  existence  of  a 
homestead  that  it  should  be  a  piece  of  land  designed  or 
used  as  the  place  of  the  house.  Although  the  word  is 
sometimes  used  in  an  enlarged  sense  so  as  to  include  both 
the  house  and  the  land,  yet  such  I  apprehend  is  not  its 
usual  signification,  or  that  in  which  it  was  used  by  the 
legislature.  That  they  used  it  in  its  primary  sanse  ap- 
pears plainly  from  their  language,  "a  homestead  consisting 
of  any  quantity  of  land,"  etc. 

I  am  thus  particular  in  endeavoring  to  ascertain  the 
true  and  primary  meaning  of  this  word,  because  I  think 
the  majority  of  the  court,  both  in  their  reasoning  and 
opinion  in  this  case,  have  confounded  this  natural  and 
obvious  signification  of  the  word  with  that  of  the  words 
"abode,"  "dwelling  house,"  "home,"  "residence,"  and  the 
like,  which  do  not  necessarily  mean  the  same  thing.  I  can 
better  illustrate  by  putting  a  case  which  is  very  likely  to 
happen.  Suppose  the  house  of  a  debtor  having  a  house 
and  homestead,  that  is,  the  quantity  of  land  exempt  by 
statute,  should,  by  some  accident,  such  as  fire  or  storm, 
be  destroyed,  and  the  debtor  and  his  family  be  thereby 


17  Phelps  v.  Rooney,  et  al. 

obliged  to  seek  shelter  and  protection  elsewhere,  would  the 
homestead  be  thereby  subjected  to  seizure  and  sale,  to  sat- 
isfy the  demand  of  some  merciless  creditor,  whilst  the 
unfortunate  debtor  was  in  good  faith  gathering  the  means 
and  endeavoring  to  rebuild?  I  confess  that  in  view  of 
the  benevolent  spirit  which  actuated  our  exemption  laws, 
and  with  my  understanding  of  the  word  "homestead,"  I 
could  never  sanction  such  a  proceeding  and  thus  double 
his  misfortunes.  If,  however,  the  word  "homestead" 
means  abode,  residence  or  house,  he  would  lose  it,  for  it 
would  not  then,  by  reason  of  his  misfortune,  be  his  abode, 
residence,  or  house.  But  if  the  word  is  construed  in  its 
ordinary  sense,  it  might  well  be  construed  to  be  within 
the  language  of  the  statute ;  as  it  certainly  would  be  within 
its  spirit.  Johnson  gives  an  instance  of  the  distinctive  use 
and  sense  of  the  words  "house"  and  "homestead,"  in  the 
following  lines  from  Dryden : 

"Both  house  and  homestead  into  seas  are  borne, 
And  rocks  are  from  their  own  foundation  torn." 

In  ordinary  conversation,  or  in  giving  a  construction  to 
written  instruments,  I  imagine  that  few  people  would  dis- 
agree as  to  the  meaning  of  the  words  "dwelling  house," 
when  used.  If,  when  taken  together,  they  have  not  a  fixed 
and  definite  signification,  then  I  know  of  no  words  in  our 
language  that  have.  Webster  defines  the  two  words  taken 
together,  as  "the  house  in  which  a  man  lives.7'"  The  word 
"house,"  he  says  appropriately,  signifies  "a  building  or 
edifice  for  the  habitation  of  man;  a  dwelling  place,  man- 
sion, or  abode,  for  any  of  the  human  species;"  that  is,  a 
building  or  edifice,  or  place,  designed  or  constructed  for 
the  habitation  of  man,  as  distinguished  from  those  other 
buildings,  edifices,  etc.,  constructed  by  man  for  other  pur- 
poses. This  I  believe  to  be  the  ordinary  and  obvious  im- 


Opinions  of  Chief  Justice  Dixon.  18 

port  of  the  words,  and  to  be  the  sense  in  which  they  were 
used  by  the  legislature.  It  need  not,  it  is  true,  be  built 
of  any  particular  materials,  or  in  any  particular  style  of 
architecture  or  workmanship,  but  it  must  be  constructed 
and  used  for  a  dwelling  for  man,  and  not  for  other  pur- 
poses. 

The  building  in  question  is,  by  its  location  and  external 
and  internal  construction,  designed  for  a  store,  or  place  of 
business,  and  ever  since  its  erection  has  been  used  by  the 
defendant,  and  tenants  holding  under  him,  principally  for 
that  purpose.  It  seems  to  me  that  the  error  lies  in  mis- 
interpreting the  words  "dwelling  house."  It  is  assumed 
that  they  are  synonymous  with  "habitation,"  "residence," 
"home,"  or  "abode."  A  dwelling  house  may  be  either  of 
these,  but  it  does  not  follow,  therefore,  that  the  words  are 
convertible.  The  statute  exempts  a  dwelling  house,  eo 
nomine.  If  the  legislature  had  by  name  exempted  every 
man's  residence  or  habitation,  there  might  be  some  propri- 
ety in  extending  the  provision  of  the  act  to  a  case  like  the 
present ;  but  even  then  I  do  not  think  it  would  be  within 
its  spirit.  Man  may  take  up  his  residence  in  any  place 
which  will  afford  him  shelter  or  protection.  Suppose  a 
family  were  to  reside  in  a  steamboat  (which  very  often 
happens),  would  that  make  the  steamboat  a  dwelling  house 
within  the  ordinary  meaning  of  that  word  ?  It  is  true  that 
the  boat  might  not,  owing  to  its  being  personal  property, 
be  exempt  within  the  meaning  of  our  statute,  yet  I  think 
the  illustration  a  fair  one,  for  the  purpose  of  showing  the 
absurdity  of  calling  everything  which  may  be  used  as  a 
place  of  abode,  a  dwelling  ho^se.  Yet  such  seems  to  be 
the  reasoning  of  the  court;  and  the  same  magical  power 
of  construction  which  can  convert  what  is  essentially  a 
store,  constructed,  known,  and  used  as  such,  into  a  dwell- 


19  Phelps  v.  Rooney,  et  a/. 

ing  house,  in  the  ordinary  or  grammatical  sense  of  the 
words,  because  some  members  of  the  human  family  hap- 
pened to  take  up  their  abode  therein,  could,  and  if  con- 
sistent, would  be  bound,  under  the  same  state  of  facts,  to 
convert  into  dwelling  houses,  churches,  warehouses,  depots, 
barns,  mills,  manufactories,  boats,  vessels,  and  every  other 
structure  or  edifice,  though  still  occupied  for  the  purposes 
for  which  they  were  designed.  Thus,  what  is  to-day  a 
mill  or  factory,  known  and  called  such  in  ordinary  lan- 
guage, would  tomorrow  become  a  dwelling  house,  upon 
some  person  making  a  residence  of  some  remote  nook  or 
corner  of  it.  When  this  loose  rule  of  construction  is  once 
established,  where  is  it  to  end  ?  All  the  witnesses  concur 
in  saying  that  the  building  is  principally  designed  and 
used  as  a  store,  and  that  its  use  as  a  residence  is  merely 
incidental. 

The  proof  shows  that  at  the  time  of  the  execution  of  the 
mortgage  in  question,  and  long  before  and  after,  the  main 
portion  of  the  building  was  leased  by  Eooney  to  tenants, 
who  occupied  it  as  a  wholesale  and  retail  clothing  store, 
at  an  annual  rent  of  $1,500,  and  that  the  annual  value  of 
the  portion  occupied  as  a  residence  was  $250.  Thus,  it 
appears,  not  only  that  the  building  is  by  construction  a 
store,  but  that  six-sevenths  of  its  value  and  use  is  devoted 
to  that  purpose.  Now,  if  one-seventh  of  a  building,  being 
used  as  a  residence,  converts  it  all  into  a  dwelling  house, 
it  is  important  that  the  court  should  define  what  lesser 
fraction  would  not.  This  is  a  calculation  into  which  I 
confess  my  utter  inability  to  enter;  but  as  it  is  an  im- 
portant question,  in  which  all  the  citizens  of  the  state,  and 
many  out  of  it,  have  a  deep  interest,  I  insist  that  the  court, 
which  has  adopted  such  construction,  should  define,  by 
some  means,  arithmetical  or  otherwise,  just  how  far  this 


Opinions  of  Chief  Justice  Dixon.  20 

system  of  transmutation  may  be  carried.  I  mention  this 
because  it  is  intimated  in  the  opinion  of  the  court  that  a 
case  might  happen  of  a  party  occupying  a  part  of  a  hotel 
or  a  mill,  where  they  would  not  feel  bound  to  consider  it 
within  the  rule.  It  seems  to  me  that  such  an  intimation 
when  compared  with  the  principles  established  by  the  de- 
cision in  this  case  is  irrational,  and  that  there  can  be  no 
consistent  limit  except  that  fixed  territorially  by  the  statute. 

The  defendant's  lot  is  20  by  150  feet.  He  might  own, 
on  either  side  of  him  in  the  same  block,  two  and  two- 
thirds  more  stores,  and  still  be  within  the  statute  limit. 
He  might  also  very  conveniently  occupy  the  whole  of  the 
third  or  fourth  stories  for  the  various  purposes  of  a 
kitchen,  bedrooms,  parlors,  etc.  If  such  were  the  case, 
he  would,  at  the  same  rate,  be  in  the  enjoyment  of  an  an- 
nual income  of  $5,500.  Would  the  court  interfere  in  be- 
half of  a  creditor  in  such  a  case  ?  If  so,  how,  and  upon 
what  principle? 

I  think  it  an  utter  perversion  of  language  to  call  this 
building  a  dwelling  house.  It  is  not,  in  any  fair  sense 
of  the  word.  ~No  one  knows  it  as  such;  no  one  calls  it 
such.  A  circumstance  worthy  of  note  here,  and  which  ap- 
pears from  the  case,  is,  that  neither  the  defendant,  nor 
any  of  the  witnesses  called  to  testify,  not  even  those  called 
by  him  to  prove  that  it  was  his  dwelling  house,  call  it  by 
that  name.  !N"o  one  ever  seems  to  have  imagined  that  it 
was  a  dwelling  house.  It  seems  to  have  been  left  for  the 
courts  to  make  that  discovery.  The  defendant,  in  his 
mortgage,  called  it  "store  No.  107  East  Water  street,"  and 
every  witness  spoke  of  it  in  that  way,  or  as  "the  Rooney 
store."  If  the  defendant  had  possessed  a  water  power  upon 
the  premises,  which  he  had  improved  by  the  erection  of  a 


21  Phelps  v.  Rooney,  et  al. 

mill  or  a  factory,  in  some  part  of  which  he  resided,  the 
result  must  hare  been  the  same. 

We  are  told  in  history  that  Diogenes,  the  celebrated 
cynic  philosopher,  at  one  time  took  up  his  abode  in  a  tub 
belonging  to  the  temple  of  Cybele;  I  suppose  the  tub  be- 
came ipse  facto  a  dwelling  house  in  the  ordinary  sense  of 
that  word,  and  that  hereafter  strict  propriety  of  language 
will  require  us  to  say  that  he  lived  in  a  dwelling  house  be- 
longing to  the  temple  instead  of  a  tub.  Nay,  more,  I  sup- 
pose the  moment  the  philosopher  got  into  the  tub,  the 
whole  temple  instantly  became  a  dwelling  house,  and  that 
he  might,  had  he  been  so  inclined,  have  claimed  it  as  ex- 
empt under  the  operation  of  a  statute  like  ours. 

If  tomorrow  a  man  in  Madison  should  sell  to  another  a 
lot  in  the  city  of  Milwaukee,  which  the  purchaser  had 
never  seen,  and  should  represent  to  the  purchaser  that  it 
had  a  dwelling  house  upon  it,  and  should  convey  it  as  a 
house  and  lot,  and  the  next  day  the  purchaser  should  go  to 
Milwaukee  to  see  his  property,  I  sincerely  believe,  if  he 
had  never  heard  of  the  decision  in  this  case,  that  he  would 
be  surprised  to  find  himself  the  owner  of  a  lot  with  a  shot 
tower  upon  it.  If  afterwards  he  should  return  to  the 
seller  and  complain  of  fraud  and  misrepresentation,  I 
suppose  the  justification  of  the  seller  would  be  that  the 
courts  had  decided  that  whatever  building  a  man  lives  in, 
is  a  dwelling  house;  that  at  the  time  he  sold,  his  family 
resided  in  the  tower,  and  therefore  the  purchaser  had  got 
what  he  bargained  for.  I  mention  these  things  for  no 
other  purpose  than  to  show  what  appears  to  me  to  be  the 
absurdity  of  the  meaning  attached  to  the  words  'dwelling 
house/  and  how  totally  variant  it  is  from  our  common  un- 
derstanding of  them. 


Opinions  of  Chief  Justice  Dixon.  22 

A  reason  strongly  urged  for  the  contraction  given  by  the 
court,  is  that  any  other  construction  would  operate  harshly 
on  a  large  class  of  small  tradesmen,  artizans,  and  shop- 
keepers in  some  of  our  large  towns,  such  as  seamstresses, 
shoemakers,  and  others  of  kindred  occupations,  who,  it  is 
said,  are  oftentimes  under  the  necessity,  to  a  limited  ex- 
tent, of  combining  business  and  residence  in  the  same 
building.  My  answer  to  this  is,  first,  that  if  such  would 
be  the  result,  which  I  by  no  means  admit,  it  furnishes  no 
reason  for  the  violation  of  well  settled  rules  of  statutory 
construction ;  and,  secondly,  that  that  question  is  not  at  all 
involved  in  this  case.  When  a  case  arises  where  a  resi- 
dence is  the  principal,  and  the  business  the  incidental  use 
of  a  building,  I  will  be  prepared  to  discuss  that  question ; 
but  I  do  not  feel  called  upon  now  to  do  so.  The  design 
of  the  legislature  was  to  give  to  the  debtor  a  home,  and  not 
to  create  in  his  favor  a  source  of  revenue.  In  this  respect, 
I  think,  the  construction  given  is  not  only  a  violation  of 
the  letter,  but  of  the  spirit  of  the  statute.  By  pursuing 
the  obvious  import  of  the  language,  every  object  intended 
would  be  attained  with  no  substantial  inconvenience.  But 
by  the  construction  given,  the  fraud  and  injustice  which 
dishonest  debtors  will  be  enabled  to  practice  upon  their 
creditors,  is  beyond  calculation.  The  door  to  them  is 
opened  beyond  the  power  of  the  courts  to  remedy. 

It  is  suggested  by  the  court,  that  the  law  is  defective  in 
allowing  debtors  to  build  large  and  expensive  houses,  and 
to  hold  them  against  their  creditors.  How  much  is  the 
evil  remedied  by  the  decision  in  this  case  ?  It  is  laid  down 
as  a  rule  in  construing  statutes,  that  courts  are  to  presume 
that  the  legislature  intends  only  what  is  just  and  equitable. 
But  here,  because  the  law  has  some  defects,  (as  what  law 
has  not?)  it  seems  to  be  presumed  that  the  legislature 


23  Phelps  v.  Rooney,  et  al. 

intended  to  perpetuate  all  the  iniquity  in  their  power.  If 
debtors  have  heretofore  taken  advantage  of  this  defect  in 
the  statute,  by  building  large  and  expensive  houses,  in- 
stead of  devoting  their  means  to  the  payment  of  honest 
debts,  when  it  has  been  universally  understood  that  they 
could  use  their  houses  for  no  other  purposes  than  as  resi- 
dences for  themselves,  how  much  more  will  they  do  so  now, 
when  it  is  declared  by  this  court,  that  they  can  make  them 
a  source  of  revenue  by  converting  the  greater  portion  into 
places  of  business  to  be  occupied  by  others.  By  this  un- 
just construction,  the  evil  is  enhanced  one  hundred  fold, 
and  that  too,  it  seems  to  me,  without  the  slightest  shadow 
of  sanction  by  any  language  used  by  the  legislature. 

In  addition  to  the  decision  being  contrary  to  public 
policy,  and  public  justice  in  general,  it  is  in  direct  viola- 
tion of  the  rights  of  the  plaintiff  in  this  case.  He  ad- 
vanced several  thousand  dollars  on  the  security  of  this 
property.  It  was  described  and  in  actual  use  as  a  store. 
His  own  senses  told  him  it  was  a  store.  It  does  not  ap- 
pear whether  he  knew  the  defendant's  family  lived  in  it 
or  not.  That  fact  might  have  been  concealed  from  him. 
At  all  events  there  was  nothing  to  put  him  on  inquiry.  If 
he  had  known  it,  however,  and  had  sought  advice,  I  very 
much  doubt  whether  any  one  would  have  advised  him  that 
the  signature  of  Mrs.  Rooney  was  necessary  to  the  validity 
of  the  mortgage.  The  defendant  intended  and  supposed 
he  had  given  the  plaintiff  security.  The  plaintiff  believed 
he  had  it,  and  courts  will  not  annihilate  contracts  and  de- 
stroy the  rights  of  parties  except  in  clear  cases.  They 
will  rather  adopt  such  a  construction  as  will  promote  the 
ends  of  justice  and  equity. 

Although  I  am  in  favor  of  a  fair,  I  might  say  liberal, 
construction  of  the  statute  in  question,  in  aid  of  the  inten- 


Opinions  of  Chief  Justice  Dixon.  24 

tion  of  the  legislature,  yet  as  the  fifty-second  section,  un- 
der which  the  defense  in  this  action  is  made,  is  a  disabling 
act,  it  should  be  in  this  case  strictly  construed.  This  rule 
of  construction  is  well  settled.  In  Smith  v.  Spooner,  3 
Pick.  E.  230,  Chief  Justice  Parker  says:  "Every  man 
of  full  age  and  sound  mind  is  at  liberty  to  make  contracts, 
and  if  made  upon  good  consideration  and  without  fraud, 
he  must  be  bound  by  them,  unless  by  statute  provision  he 
is  disabled.  And  disabling  statutes  of  that  nature  should 
be  strictly  construed;  for,  though  founded  in  policy  and 
just  regard  to  the  public  welfare,  they  are  in  derogation 
of  private  rights." 

In  Short  v.  Hubbard  et  al,  2  Bing.  349,  9  Com.  Law 
R.  429,  it  was  held  that  there  was  no  impropriety  in  giv- 
ing a  strict  construction  to  one  clause  and  a  liberal  con- 
struction to  another  clause  of  the  same  statute. 

In  this  view  of  the  case,  the  question  here  presented  is 
very  different  from  what  it  would  be  were  the  plaintiff 
seeking  to  subject  the  property  to  the  payment  of  his  debt, 
by  the  ordinary  process  of  law,  against  the  will  of  Rooney, 
the  owner,  who,  by  executing  the  mortgage,  has  signified 
his  wish  and  willingness  to  have  it  so  appropriated.  Ifc 
was  the  exercise  of  a  right  on  his  part  as  the  owner,  with 
which  no  one  could,  by  the  common  law,  interfere.  A  lib- 
eral construction  of  this  section  may,  at  times,  prove  very 
inconvenient  to  some  of  these  princely  debtors,  which  it 
seems  to  be  the  design  of  the  court  to  foster  and  protect. 

Thus  far,  I  think,  upon  principle,  that  the  construction 
given  is  erroneous ;  that  the  legislature  never  intended  it. 
My  sense  of  justice  to  that  branch  of  the  government  will 
never  permit  me  to  sanction  it.  So  far  ,as  there  are  any 
authorities  bearing  directly  upon  the  question,  I  think  I 
am  fully  sustained  in  the  views  I  have  taken. 


25  Phelps  v.  Rooney,  et  al. 

The  case  of  Rhodes  et  al.  v.  McCormiek,  4  Iowa  Rep. 
368,  which  arose  under  a  statute  like  our  own,  is  like  the 
one  under  consideration  in  almost  every  circumstance,  ex- 
cept that  there  the  plaintiffs  were  seeking  to  satisfy  an 
execution  against  McCormick,  by  a  sale  of  the  premises. 
In  that  case,  the  building  was  situated  on  a  half  lot  in 
the  city  of  Muscatine.  The  cellar  and  first  story  were 
rented  by  McCormick,  and  used  as  a  store,  whilst  he  oc- 
cupied the  second  and  third  stories  as  a  place  of  residence. 
The  court  held  that  the  cellar  and  first  story  were  liable 
to  sale  on  the  execution,  whilst  the  debtor  would  remain 
the  owner  of  the  soil  and  the  second  and  third  stories. 

In  commenting  upon  the  case,  Wright,  C.  J.,  says :  "A 
defendant  cannot,  by  calling  a  house  his  homestead,  make 
it  such.  He  cannot,  by  occupying  or  using  one  room  in  a 
building  containing  forty,  exempt  the  entire  premises. 
Neither  can  he,  by  using  all  the  rooms  of  the  second  and 
third  stories,  as  a  homestead,  exempt  from  liability  the 
store  rooms  that  may  be  below,  but  which  have  no  kind  of 
connection  with  the  homestead  as  such.  *  *  *  While, 
as  a  general  rule,  it  may  be  true,  that  the  term  'house'  in- 
cludes an  entire  building,  yet,  within  the  meaning  of  this 
chapter,  it  is  to  be  so  construed  as  to  carry  out  the  object 
and  purpose  of  the  laws,  so  as  to  give  the  claimant  his 
homestead,  and  not  stores,  shops  and  rooms,  which  are 
never  used  by  the  family,  or  for  a  home,  or  any  part  of  it. 
In  our  opinion,  it  was  never  the  intention  of  the  law-mak- 
ing power  to  exempt  from  execution  an  entire  building 
or  house,  for  whatever  used,  because  some  portion  of  it 
was  used  by  the  owner  as  his  homestead.  *  *  *  The 
object  of  the  law  is  to  protect  the  home  and  preserve  it  for 
the  family,  and  not  shops,  stores,  rooms,  hotels  and  office 
rooms,  which  are  rented  and  occupied  by  other  persons. 


Opinions  of  Chief  Justice  Dixon.  26 

This  construction  attains  the  object  of  the  code  in  exempt- 
ing a  homestead,  and  prevents  the  abuse  of  a  law  which 
was  designed  to  discourage  and  not  to  encourage  fraud." 

Although  I  do  not  concur  with  the  court  in  that  case, 
that  a  building  should  be  divided  by  horizontal  lines,  or  by 
rooms,  as  the  case  might  be,  which  might  be  productive  of 
great  mischief  and  inconvenience,  being  of  the  opinion 
that  the  converting  of  it  principally  to  other  purposes, 
ought  to  operate  as  a  waiver  of  the  right  to  claim  it  as 
exempt,  I  cannot  but  admire  the  strong  sense  of  justice 
which  pervaded  the  minds  of  the  court. 

In  the  case  of  the  People  v.  Plumstead  et  al.,  2  Gibbs 
Rep.,  (Mich.)  465,  the  court  held  that  the  owner  of  prem- 
ises which  had  not  previously  been  selected  as  a  homestead, 
could  convey  them  without  the  signature  of  his  wife,  not- 
withstanding the  provisions  of  the  statute  are  identical 
with  our  own,  our  statute  having  been  copied  from  that  of 
Michigan.  The  decision  was  made  upon  the  ground  that 
no  selection  of  the  owner  was  proved,  though  the  previous 
occupancy,  as  a  homestead,  was  fully  established.  In  the 
present  case  no  proof  of  selection  by  Hooney  was  made  or 
offered.  These  are  the  only  authorities  to  be  found  hav- 
ing any  direct  bearing  on  the  question. 

I  think  the  judgment  should  be  reversed. 

NOTE.* 

It  is  not  easy  to  distinguish  the  principle  upon  which  the 
minority  and  majority  opinions  in  the  above  case  differ, 
although  the  conclusions  arrived  at  in  the  two  opinions  as 
to  the  particular  case  are  directly  opposed  to  each  other. 
In  the  majority  opinion,  speaking  of  the  argument  that 
the  doctrine  there  announced  would  enable  dishonest  debt- 

*  Cases  marked  with  asterisk  in  the  note  cite  Phelps  v.  Rooney, 
supra. 


27  Note  to  Phelps  v.  Rooney,  et  al. 

ors  to  perpetrate  gross  frauds,  in  holding  a  large  mill  or 
manufactory  or  hotel  as  a  homestead  by  keeping  some 
small  portion  of  it  as  a  residence,  the  court  said,  in  sub- 
stance, that  it  did  not  think  the  statute  could  be  held  to 
apply  to  such  a  case,  but  that  if  it  did  the  remedy  was 
with  the  legislature  and  not  with  the  court.  It  seems  to 
have  been  the  precise  point  of  the  dissenting  opinion  of 
the  chief  justice  that  the  case  under  consideration  be- 
longed to  the  class  referred  to  in  the  majority  opinion 
where  a  dishonest  debtor  was  attempting  to  perpetrate  a 
fraud  upon  a  creditor  by  holding  as  exempt  property 
which  measured  by  its  use  was  only  one-seventh  residence 
and  six-sevenths  leased  for  the  business  of  a  store.  The 
rule  deducible  from  the  opinion  of  the  Chief  Justice, 
seems  to  be  that  where  residence  is  the  'principal  and  busi- 
ness the  incidental  use  of  the  building,  the  whole  might  be 
held  exempt,  but  where,  as  in  the  case  then  before  the 
court,  the  main  use  and  value  of  the  building  was  for  busi- 
ness and  it  was  being  actually  leased  by  the  debtor  for  that 
purpose,  no  portion  of  it  would  be  held  a  homestead.  The 
exigencies  of  modern  business  well  illustrate  the  wisdom 
and  justice  of  the  dissenting  opinion.  A  modern  sky- 
scraper may  represent  an  investment  of  millions,  may 
yield  in  rentals  a  princely  fortune  annually,  yet  under  the 
decision  of  the  majority  of  the  court,  it  would  seem  to  be 
exempt  if  some  portion  of  it  was  fitted  for  and  actually 
used  as  a  residence  by  the  debtor  and  his  family.  Never- 
theless the  doctrine  is  firmly  fixed  in  most  of  the  jurisdic- 
tions that  use  of  a  portion  of  a  building  by  the  owner  for 
business  purposes,  or  a  rental  of  a  portion  thereof  to  others, 
will  not  of  itself  operate  to  destroy  the  homestead  rights  in 
any  portion  of  it.  *Smith  v.  Pearce,  85  Ala.  258 ;  *Nor- 
ris  v.  Kidd,  28  Ark.  298 ;  Klenk  v.  Knoble,  37  Ark.  298 ; 
Gainus  v.  Cannon,  42  Ark.  514;  Ackley  v.  Chamberlain, 
16  Cal.  183 ;  *Skinner  v.  Hall,  69  Cal.  199 ;  *Heathman 
v.  Holmes,  94  Cal.  294;  In  re  Ogburn,  105  Cal.  95 ;  Kiesel 
v.  Clemens,  6  Idaho,  444;  Hubbell  v.  Canady,  58  111.  425; 
Stevens  v.  Hollingsworth,  74  111.  202 ;  Smith  v.  Quiggans, 
65  la.  637;  Edmonds  v.  Davis,  122  la.  561;  *Hogan  v. 


Opinions  of  Chief  Justice  Dixon.  28 

Manners,  23  Kan.  551 ;  Rush  v.  Gordon,  38  Kan.  535 ; 
*Bebb  v.  Crowe,  39  Kan.  342 ;  Hoffman  v.  Hill,  47  Kan. 
611 ;  Woodward  v.  Till,  1  Mich.  K  P.  210 ;  Orr  v.  Shraft, 
22  Mich.  260 ;  King  v.  Welburn,  83  Mich.  195  ;  Lament  v. 
La  Favre,  96  Mich.  175 ;  Mercier  v.  Chase,  93  Mass.  194, 
(11  Allen);  Lazell  v.  Lazell,  90  Mass.  575,  (8  Allen); 
Pratt  v.  Pratt,  161  Mass.  276 ;  Kelly  v.  Baker,  10  Minn. 
153;  *TJmland  v.  Holcomb,  26  Minn.  286;  *Adams  v. 
Adams,  183  Mo.  396;  Corey  v.  Sinister,  44  Neb.  269; 
Goldman  v.  Clark,  1  Nev.  608;  Flannegan  v.  Stifel,  3 
Tenn.  Ch.  464;  Hancock  v.  Morgan,  17  Tex.  582 ;  Prior  v. 
Stone,  19  Tex.  371;  Sossaman  v.  Powell,  21  Tex.  664; 
Moore  v.  Whitis,  30  Tex.  440 ;  *Forsgard  v.  Ford,  87  Tex. 
185 ;  King  v.  Hapgood  Shoe  Co.,  21  Tex.  Civ.  App.  217 ; 
In  re  Tertelling,  2  Dill.  (U.  S.)  339;  *Fink  v.  O'Neil, 
106  U.  S.  275. 

How  slight  the  use  for  residential  purposes  might  be, 
and  still  maintain  its  character  as  a  homestead,  so  as  to 
be  exempt,  was  not  considered  in  the  above  cases. 

In  Hogan  v.  Manners,  supra,  Mr.  Justice  Brewer  refers 
to  the  question,  but  expressly  declines  to  pass  upon  it  in 
that  case. 

This  precise  question,  however,  is  considered  in  a  late 
case  in  the  Oklahoma  Court:  See  DeFord  v.  Painter,  3 
Okla.  80. 

The  Oklahoma  Supreme  Court  in  the  DeFord  case, 
supra,  expressly  approves  the  doctrine  of  the  majority  of 
the  court  in  Phelps  v.  Rooney,  but  carries  it  further  than 
the  Wisconsin  Court  has  ever  gone,  and  holds  that  a  build- 
ing will  be  exempt  as  a  homestead  if  some  portion  of  it  is 
actually  occupied  as  a  residence,  no  matter  how  small  that 
portion  may  be  and  no  matter  to  what  uses  the  remainder 
of  the  building  is  dedicated. 

The  doctrine  of  principal  use,  however,  as  contended  for 
by  the  Chief  Justice  in  Phelps  v.  Rooney  has  found  favor 
in  a  number  of  the  courts.  Garrett  v.  Jones,  95  Ala.  96 ; 
Turner  v.  Turner,  107  Ala.  465;  Marx  v.  Threet,  131 
Ala.  340 ;  Laughlin  v.  Wright,  63  Cal.  116 ;  McDowell  v. 
His  Creditors,  103  Cal.  264;  Wright  v.  Ditzler,  54  la. 


29  Note  to  Phelps  v.  Rooney,  et  al. 

620;  Philleo  v.  Smalley,  23  Tex.  498;  Stanley  v.  Green- 
wood, 24  Tex.  224;  Houston,  etc.,  Company  v.  Gage,  44 
Tex.  597 ;  Iken  v.  Olenick,  42  Tex  195 ;  Grosholz  v.  New- 
man, 21  Wall.  481. 

In  Iowa  still  a  different  doctrine  prevails.  Commenc- 
ing with  the  case  of  Rhodes  v.  McCormick,  4  la.  358, 
cited  in  Chief  Justice  Dixon's  opinion,  supra,  that  court 
has  uniformly  held  that  a  building  could,  and  in  a  proper 
case  should,  be  divided  on  horizontal  lines  and  the  por- 
tion thereof  not  used  by  the  debtor  for  residential  purposes 
sold  to  satisfy  his  creditors.  McCormick  v.  Bishop,  28 
la.  233;  Mayfield  v.  Maasden,  59  la.  517;  Johnson  v. 
Moser,  66  la.  536 ;  Cass  County  Bank  v.  Weber,  83  la. 
63. 

On  a  motion  for  re-argument,  Phelps  v.  Rooney,  supra, 
was  again  before  the  Wisconsin  Supreme  Court  and  is  re- 
ported in  12  Wis.  699.  A  majority  of  the  court  still 
adhered  to  the  opinion  previously  expressed,  and  the  Chief 
Justice  again  dissented  in  an  elaborate  opinion  in  which 
he  contended  strongly  for  the  doctrine  of  horizontal  di- 
vision of  a  building,  substantially  as  applied  in  Rhodes  v. 
McCormick,  supra.  The  Federal  Court  of  Wisconsin  ex- 
pressly refused  to  follow  Chief  Justice  Dixon's  opinion 
on  the  subject  of  horizontal  division  of  a  building  claimed 
as  a  homestead.  *In  re  Lammer,  7  Bissell,  269.  See 
also  In  re  Wright,  3  Bissell,  359. 

The  Federal  Court  nevertheless  in  the  cases  cited  de- 
nied the  debtor's  right  to  hold  any  portion  of  the  building 
as  a  homestead  and  in  the  Lammer  case  rested  its  decision 
largely  on  the  ground  that  the  building,  a  store,  was  not 
constructed  as  a  residence,  and  because  of  that,  although 
actually  occupied  by  the  debtor  and  his  family,  the  home- 
stead exemption  did  not  attach.  This  decision  also  goes 
in  part  upon  the  ground  that  the  debtor  had  acquired  this 
property,  and  moved  into  it  as  a  home  for  himself  and 
family,  when  insolvent,  and  paid  for  it  out  of  the  proceeds 
of  property  otherwise  liable  for  his  debts,  and  that  these 
acts  constituted  a  fraud  upon  his  creditors.  So  far  as  this 
case  rests  upon  this  latter  ground,  it  has  been  expressly  re- 


Opinions  of  Chief  Justice  Dixon.  30 

pudiated  by  the  unanimous  decision  of  the  Supreme  Court 
of  Wisconsin.  Comstock  v.  Bechtel,  63  Wis.  656;  Binzel 
v.  Grogan,  67  Wis.  147 ;  *Palmer  v.  Hawes,  80  Wis.  474 ; 
Kepernick  v.  Louk,  90  Wis.  232 ;  Scott  v.  Holman,  117 
Wis.  206. 

The  cases  last  cited  held  that  the  debtor,  though  insol- 
vent, may  convert  non-exempt  property  into  exempt  prop- 
erty for  the  purpose  of  holding  it  against  his  creditors,  and 
he  will  nevertheless  be  protected  in  his  exemption  thus  ac- 
quired, if  it  comes  fairly  within  the  terms  of  the  statute. 

Phelps  v.  Rooney  has  been  frequently  cited  as  authority 
by  the  Wisconsin  Court  and  the  rule  there  adopted  by  the 
majority  of  the  court  has  been  followed,  though  apparently 
with  some  misgivings.  See  Harriman  v.  Insurance  Com- 
pany, 49  Wis.  71 ;  also  Casselman  v.  Packard,  16  Wis. 
114;  Jarvais  v.  Moe,  38  Wis.  440;  Kent  v.  Lasley,  48 
Wis.  257;  Schoffen  v.  Landauer,  60  Wis.  334;  Palmer  v. 
Hawes,  80  Wis.  474. 

In  Casselman  v.  Packard,  supra,  the  premises  in  ques- 
tion consisted  of  less  than  a  quarter  of  an  acre  of  land  in 
a  village,  on  which,  besides  the  dwelling  house  in  which 
the  owner  resided  with  his  family,  were  various  other 
buildings  used  and  occupied  as  stores,  warehouses,  shops, 
etc.,  and  rented  by  the  owner  to  third  persons.  Under  the 
Wisconsin  statute  the  homestead  exemption  in  a  village  or 
a  city  is  limited  to  one-quarter  of  an  acre.  The  owner 
claimed  that  all  the  buildings,  together  with  the  land, 
were  exempt  as  his  homestead,  and  the  Circuit  Judge  took 
this  view  of  the  case.  The  judgment,  however,  was  re- 
versed by  the  unanimous  decision  of  the  Supreme  Court  on 
the  ground  that  the  buildings  and  land  not  actually  used 
for  homestead  purposes  could  not  be  claimed  as  exempt. 
Chief  Justice  Dixon  in  this  case  wrote  a  separate  opinion 
in  which  he  pointed  out  that  the  only  difference  between 
the  opinion  of  the  majority  of  the  court  in  that  case  and 
his  opinion  on  the  re-argument  in  Phelps  v.  Rooney  was 
the  difference  between  a  divison  of  the  property  upon  per- 
pendicular and  horizontal  lines.  The  doctrine  of  Cassel- 
man v.  Packard  has  subsequently  been  adhered  to  and  is 


31  Note  to  Phelps  v.  Roomy,  et  al. 

the  undoubted  law  of  Wisconsin  at  the  present  time.  See 
Schoffen  v.  Landauer,  60  Wis.  334. 

The  doctrine  of  Casselman  v.  Packard  has  been  rejected 
in  the  following  cases :  Lubbock  v.  McMann,  82  Cal.  226 ; 
Kennedy  v.  Gloster,  98  Cal.  143 ;  Hubbell  v.  Canady,  58 
111.  425;  Stevens  v.  Hollingsworth,  74  III  202;  P.  & 
E.  Brewing  &  Malting  Co.  v.  Schroeder,  67  111.  App.  560; 
Kelly  v.  Baker,  10  Minn.  154;  *Baldwin  v.  Tillery,  62 
Miss.  378;  Colbert  v.  Henley,  64  Miss.  374;  Clark  v. 
Shannon,  1  Nev.  568;  Smith  v.  Stewart,  13  £Tev.  65; 
*Greeley  v.  Scott,  10  Fed.  Cas.  Ko.  5,746  (2  Woods,  657). 

On  the  similar  principle  the  Wisconsin  court  has  uni- 
formly held  that  where  the  homestead  exemption  was 
claimed  in  agricultural  land,  such  land,  in  order  to  be 
exempt,  must  be  in  one  lot  or  tract,  on  which  the  dwelling 
house  of  the  debtor  must  be  located.  Bunker  v.  Locke, 
15  Wis.  635 ;  Hornby  v.  Sikes,  56  Wis.  382. 

Of  course  in  those  jurisdictions  where  the  value  of  the 
homestead,  which  can  be  claimed  as  exempt,  is  limited  by 
statute,  the  question  upon  which  the  members  of  the  court 
differed  in  Phelps  v.  Rooney  is  less  important.  In  those 
jurisdictions,  however,  in  which  no  limit  is  placed  upon 
the  value  of  the  homestead  exemption,  the  rule  of  the  ma- 
jority of  the  court  in  that  case  seems  unjust.  At  the  time 
the  opinion  was  delivered  Wisconsin  had  no  law  limiting 
the  value  of  the  homestead  exemption.  See  in  this  con- 
nection, Thompson  on  Homesteads  and  Exemptions,  Sec. 
103,  133,  136. 

Chief  Justice  Dixon's  opinion,  supra,  is  quoted  with  ap- 
parent approval  by  the  learned  author  in  the  above  sec- 
tions. The  legislature  of  Wisconsin  in  1901  by  Chap. 
267  of  the  laws  of  that  year  limited  the  value  of  the  home- 
stead exemption  to  $5,000. 

Phelps  v.  Rooney  is  cited  in  notes  to  the  following  cases 
reported  in  Am.  Dec.,  Ana.  St.  Rep.,  and  L.  R.  A. 

American  Decisions:  Poole  v.  Gerrard  (6  Cal.  71),  65 
Am.  Dec.  485;  Rhodes  v.  McCormick  (4  la.  368),  68 
Am.  Dec.  669;  Pryor  v.  Stone  (19  Tex.  370),  70  Am. 
Dec.  349,  350;  Platto  v.  Cady  (12  Wis.  461),  78  Am. 


Opinions  of  Chief  Justice  Dixon.  32 

Dec.  754 ;  Casselman  v.  Packard  (16  Wis.  114),  82  Am. 
Dec.  712;  McDonald  v.  Badger  (23  CaL  393),  83  Am. 
Dec.  129;  Blue  v.  Blue  (38  111.  19),  87  Am.  Dec.  280. 

American  State  Reports:  Coates  v.  Caldwell  (71  Tex. 
19),  10  Am.  St.  Eep.  729;  Gallagher  v.  Smiley  (28  Neb. 
189),  26  Am.  St.  Rep.  324. 

Lawyers'  Reports  Annotated:  Cass  County  Bank  v. 
Weber  (83  la.  63),  12  L.  R  A.  479. 


33  Knowlton  v.  Board  of  Supervisors  of  Rock  Co. 


Knowlton  v.  The  Board  of  Supervisors  of  Hock  County. 

June  Term,  1859. 
(9  Wis.  410.) 

Section  1,  Article  VIII  of  the  Constitution  of  the  State 
of  Wisconsin,  provides: 

"The  rule  of  taxation  shall  be  uniform,  and  taxes  shall 
be  levied  upon  such  property  as  the  Legislature  shall  di- 
rect." 

The  Charter  of  the  City  of  Janesville,  as  amended, 
chapter  179,  Local  Laws  of  1854,  provided,  in  substance, 
that  unplatted  or  agricultural  lands  within  the  corporate 
limits  of  the  City  of  Janesville  should  not  be  taxed  more 
than  one-half  as  much  on  each  dollar's  valuation  for  city 
purposes  as  the  lots  and  platted  portions  of  the  land  with- 
in said  corporate  limits  were  taxed.  Taxes  having  been 
levied  upon  certain  lots  within  the  corporate  limits  of  the 
city  at  double  the  rate  levied  upon  other  lands  therein  re- 
served for  agricultural  or  horticultural  purposes,  and  the 
taxes  upon  such  lots  not  having  been  paid  and  the  lots  hav- 
ing been  sold  for  the  nonpayment  thereof,  this  action  was 
brought  to  restrain  the  issuance  of  tax  deeds  upon  such 
sales.  The  Circuit  Judge  granted  an  injunction  restrain- 
ing the  issuance  of  the  tax  deeds  on  account  of  the  ununi- 
form  rule  of  taxation  which  had  been  applied.  On  ap- 
peal to  the  Supreme  Court  this  judgment  was  affirmed, 
Chief  Justice  Dixon  writing  the  opinion  for  the  court, 
and  Mr.  Justice  Paine  concurring.  Mr.  Justice  Cole  dis- 
sented. A  more  detailed  statement  of  facts  will  be  found 
in  the  opinion. 
3 


Opinions  of  Chief  Justice  Dixon.  34 

The  following  are  the  propositions  of  law  decided : 

The  charter  of  the  city  of  Janesville  included  within  its 
limits  a  large  quantity  of  farming  lands;  and  also 
provided,  "that  in  no  case  shall  the  real  and  personal 
property  within  the  territorial  limits  of  said  city,  and 
not  included  within  the  territorial  limits  of  the  re- 
corded plat  of  the  village  of  Janesville,  or  of  any  ad- 
ditions to  said  village,  which  may  be  used,  occupied, 
or  reserved  for  agricultural  or  horticultural  purposes, 
be  subject  to  an  annual  tax  to  defray  the  current  ex- 
penses .  of  said  city,  exceeding  one-half  of  one  per 
cent.,  nor  for  the  repair  and  building  of  roads  and 
bridges,  and  the  support  of  the  poor,  more  than  one- 
half  as  much  on  each  dollar's  valuation  shall  be  levied 
for  such  purposes  on  the  property  within  such  re- 
corded plats ;  nor  shall  the  same  be  subject  to  any  tax 
other  than  before  mentioned,  for  any  city  purpose 
whatever."  And  the  clerk  of  the  city  made  out  the 
taxes  according  to  the  provisions  of  the  charter,  and 
the  treasurer  of  the  county  sold  the  unoccupied  lots 
of  the  plaintiff  for  the  nonpayment  of  taxes  so  levied 
not  as  on  agricultural  lands,  though-  they  did  not  lie 
within  the  limits  of  the  recorded  plat  of  the  village 
of  Janesville,  or  any  of  its  additions;  Held,  that  the 
taxes  so  levied  on  the  lots  are  void,  as  being  in  viola- 
tion of  Sec.  1,  Art.  VIII  of  the  constitution  of  Wis- 
consin, which  provides  that  "the  rule  of  taxation  shall 
be  uniform,  and  taxes  shall  be  levied  upon  such  prop- 
erty as  the  legislature  shall  direct."  And  the  court 
will  enjoin  the  making  of  a  deed  upon  such  a  sale. 

Taxes  are  the  burdens  or  charges  imposed  by  the  legis- 
lative power  of  a  state  upon  persons  or  property  for 
public  use ;  and  the  power  to  tax  is  one  of  the  essen- 


35  Knowlton  v.  Board  of  Supervisors  of  Rock  Co. 

tial  attributes  of  sovereignty,  inherent  in,  and  neces- 
sary to  the  existence  of  every  government;  and  this 
power  would  be  unlimited,  except  by  the  integrity  and 
sense  of  justice  of  the  legislature,  but  for  constitu- 
tional restrictions. 

The  theory  of  our  government  is,  that  socially  and  polit- 
ically, all  are  equal,  and  that  special  or  exclusive,  so- 
cial or  political  privileges  or  immunities  cannot  be 
granted,  and  ought  not  to  be  enjoyed ;  and,  therefore, 
the  burdens  of  supporting  the  government  should  be 
borne  equally  by  all  the  individuals  composing  it,  in 
proportion  to  the  benefits  conferred.  To  give  perma- 
nency and  force,  and  secure  its  rigid  observance,  lim- 
itations or  restrictions  were  introduced  into  the  con- 
stitution of  this  state. 

The  levying  of  taxes  by  the  authorities  of  a  county,  city 
or  town,  for  their  support,  is  as  much  an  exercise  of 
the  taxing  power,  as  when  levied  directly  by  the 
state  for  its  support.  The  state  acts  by  the  municipal 
governments,  and  their  acts  in  levying  taxes  are  as 
much  the  act  of  the  state  as  if  the  state  acted  by  its 
own  officers. 

The  constitution  of  this  state  requires,  as  a  rule,  in  levy- 
ing taxes,  that  the  valuation  must  be  uniform,  and  the 
rate  uniform,  or  in  all  cases  alike,  or  equal,  operating 
alike  upon  all  the  taxable  property  throughout  the 
territorial  limits  of  the  state,  or  municipality  within 
or  for  which  the  tax  is  to  be  raised.  And  where  the 
legislature  prescribed  a  different  rule,  the  act  is  a  de- 
parture from  the  constitution,  and  therefore  void. 

The  constitution  has  fixed  one  unbending,  uniform  rule 
of  taxation  for  the  state,  and  property  cannot  be  class- 
ified and  taxed  as  classed  by  different  rules. 


Opinions  of  Chief  Justice  Dixon.  36 

The  provisions  of  the  constitution  that  "taxes  shall  be 
levied  upon  such  property  as  the  legislature  shall  di- 
rect," does  not  sanction  a  discrimination  which  pro- 
vides for  taxing  a  particular  kind  of  property  for 
the  support  of  government  by  a  different  rule  from 
that  by  which  other  property  is  taxed ;  for  when  the 
kind  of  property  is  prescribed,  the  rule  of  taxation 
must  be  uniform.  All  kinds  of  property  must  be 
taxed  uniformly,  or  be  absolutely  exempt. 

The  support  of  the  poor  is  a  matter  of  common  concern, 
and  the  expense  thereof  must  be  borne  by  the  whole 
corporation,  and  therefore,  where  the  charter  of  a 
city  provided  that  certain  property  should  pay  but 
one-half  as  much  upon  the  dollar's  valuation  as  other 
property  in  the  same  city,  held,  that  in  that  respect 
the  provision  is  unconstitutional  and  void. 

Dixon,  Chief  Justice.  Section  2,  of  subdivision  5,  of 
chapter  93,  of  the  Local  Laws  of  1853,  entitled  "an  act 
to  incorporate  the  city  of  Janesville,"  provides  that  the 
common  council  of  said  city  "shall  annually  levy  a  tax 
upon  all  the  taxable  property  in  said  city  subject  to  tax- 
ation, not  exceeding  one  per  cent.,  to  defray  the  current 
expenses  of  the  city;  and  also  an  additional  tax  of  such 
sum  as  they  may  deem  necessary  for  the  repair  and  build- 
ing of  roads  and  bridges,  and  for  the  support  of  the 
poor."  Beside  the  recorded  plat  of  the  village  of  Janes- 
ville and  its  additions,  there  was,  by  the  act,  included 
within  the  corporate  limits  of  the  city,  a  large  quantity  of 
the  adjacent  farming  or  agricultural  lands.  The  owners 
of  these  farming  lands,  conceiving  themselves  too  greatly 
and  unequally  burthened  by  taxation  for  the  support  of 
the  new  city  government,  applied  to  the  legislature  at  the 


37  Knawlton  v.  Board  of  Supervisors  of  Rock  Co. 

session  of  1854,  for  a  modification  of  the  rule  of  taxation 
as  prescribed  in  the  section  above  quoted,  when  it  was  en- 
acted, Sec.  5,  Chap.  179,  Local  Laws,  1854,  "that  in  no 
case  shall  the  real  and  personal  property  within  the  terri- 
torial limits  of  said  city,  and  not  included  within  the  ter- 
ritorial limits  of  the  recorded  plat  of  the  village  of  Janes- 
ville,  or  of  any  additions  to  said  village,  which  may  be 
used,  occupied  or  reserved  for  agricultural  or  horticultural 
purposes,  be  subject  to  an  annual  tax  to  defray  the  current 
expenses  of  said  city,  exceeding  one-half  of  one  per  cent., 
nor  for  the  repair  and  building  of  roads  and  bridges  and 
the  support  of  the  poor,  more  than  one-half  as  much  on 
each  dollar's  valuation  shall  be  levied  for  such  purposes  on 
the  property  within  such  recorded  plats ;  nor  shall  the  same 
be  subject  to  any  tax  for  any  of  the  purposes  mentioned 
in  Sec.  3,  of  Chap.  5,  of  the  act  of  which  this  is  amenda- 
tory; nor  shall  the  said  farming  land  be  subject  to  any 
tax  other  than  before  mentioned,  for  any  purpose  whatso- 
ever." Subsequently,  in  the  same  session,  this  section  was 
amended,  or  intended  so  to  be,  (for  by  mistake  undoubt- 
edly, Sec.  four  instead  of  Sec.  five,  is  named  in  the 
amendatory  act,)  as  to  make  the  last  sentence  read,  "nor 
shall  the  said  farming  or  gardening  lands  be  subject  to  any 
tax  other  than  before  mentioned  for  any  city  purpose  what- 
ever." (See  chap.  286,  Local  Laws  of  1854.)  In  pur- 
suance of  these  provisions,  the  city  clerk  so  made  out  the 
tax  roll  for  the  year  1854,  that  the  taxes  for  defraying  the 
current  expenses  of  the  city  for  said  year  were  levied  upon 
the  real  and  personal  property  within  the  recorded  plat 
and  its  additions,  at  the  rate  of  one  per  cent,  on  each  dol- 
lar of  the  assessed  value,  and  upon  the  real  and  personal 
property  without  the  plat  and  its  additions,  at  the  rate  of 
one-half  of  one  per  cent,  of  the  assessed  value.  Several 


Opinions  of  Chief  Justice  Dixon.  38 

lots  described  in  the  complaint  in  this  action,  and  of 
which  the  plaintiff  is  now  the  owner,  in  the  village  of 
Rockport,  which  lies  near  to  the  village  and  within  the  cor- 
porate limits  of  the  city  of  Janesville  and  which  the  city 
clerk  treated  as  an  addition  to  the  village  of  Janesville, 
apportioning  to  them  the  taxes,  for  city  purposes,  at  the 
rate  of  one  per  cent,  upon  their  assessed  value,  were  re- 
turned by  the  treasurer  of  the  city  to  the  county  treas- 
urer, "delinquent,"  and  by  the  latter  sold  to  satisfy  the 
taxes  due  and  unpaid  thereon,  and  certificates  of  sale  were 
issued  on  the  second  Tuesday  of  April,  1855.  In  July, 
1857,  the  defendant,  Thomas,  as  clerk  of  the  board  of  su- 
pervisors of  the  county  of  Rock,  published,  in  the  usual 
form,  in  a  newspaper  printed  in  said  county,  a  notice,  in 
which,  after  reciting  that  the  said  lots  described  in  the 
complaint,  were,  among  others,  sold  on  the  second  Tues- 
day of  April,  1855,  for  taxes,  costs  and  charges  due 
thereon  for  the  year  1854,  and  were  still  unredeemed;  he 
stated  that  unless  the  same  should  be  redeemed  from  such 
sale  on  or  before  the  tenth  day  of  April,  1858,  (being 
three  years  from  the  date  of  the  several  certificates  of 
sale,)  the  same  or  such  parcels  thereof  as  should  remain 
unredeemed  at  said  last  mentioned  date,  would  be  for- 
feited and  conveyed  to  the  purchaser  thereof.  To  perpet- 
ually restrain  the  execution .  and  delivery  of  conveyances 
pursuant  to  such  sales  and  notice,  and  to  have  the  taxes 
and  sales  declared  illegal  and  void,  this  action  was  com- 
menced. Several  questions  are  raised  by  the  complaint  as 
to  the  manner  in  which  the  lots  in  question  were  set  down 
in  the  assessment  roll,  and  the  mode  in  which  they  were 
returned,  and  also  as  to  whether  the  village  of  Rockport 
is  to  be  considered  as  an  addition  to  the  village  of  Janes- 
ville, within  the  provisions  of  the  statute,  the  same  having 


39  Knawlton  v.  Board  of  Supervisors  of  Rock  Co. 

in  fact  been  laid  out  and  platted  before  the  village  of 
Janesville  was  laid  out  and  platted,  which,  under  the  view 
we  have  taken  of  the  case,  it  will  not  become  necessary  for 
us  to  consider.  By  far  the  most  important  question  in- 
volved in  the  case  is,  whether  the  foregoing  provisions  of 
the  charter  of  the  city  of  Janesville  are  or  are  not  in  con- 
flict with  Sec.  1,  of  art.  VIII,  of  the  constitution,  which 
is  in  the  following  words :  "The  rule  of  taxation  shall  be 
uniform,  and  taxes  shall  be  levied  upon  such  property  as 
the  legislature  shall  direct."  It  was  to  this  point  that  ar- 
guments of  counsel  were  mostly  directed,  and  for  reasons 
existing  outside  of  the  present  controversy,  we  were  earn- 
estly solicited  by  both  sides  to  determine  the  case  upon  it. 
In  view  of  these  reasons,  and  because  the  question  is  fairly 
raised,  we  feel  disposed  to  yield  to  the  wishes  of  counsel, 
and  shall  therefore  make  it  the  only  point  of  investigation. 
For  this  purpose  the  foregoing  statement  sufficiently  em- 
bodies the  facts  alleged  in  the  complaint.  The  complaint 
was  demurred  to  by  the  defendants,  for  the  reason  that  it 
did  not  state  facts  sufficient  to  constitute  a  cause  of  action. 
The  circuit  judge  overruled  the  demurrer,  and  from  his 
decision  the  defendants  appealed.  It  has  frequently  been 
adjudged  by  this  court  that  courts  of  equity  in  this  state 
will,  by  way  of  preventing  the  creation  upon  the  record  of 
a  cloud  upon  the  owner's  title,  interfere  by  injunction  to 
restrain  the  execution  and  delivery  of  a  deed  of  lands  sold 
for  taxes,  which  have  been  illegally  or  improperly  as- 
sessed. • 

It  will  be  seen  that  these  statutes,  which  were  carried 
into  effect  in  the  assessment  and  levying  of  the  taxes  for 
the  year  1854,  provide  for  two  distinct  and  unequal  rates 
of  taxation  upon  the  same  kinds  of  property  for  the  sup- 
port of  the  city  government,  the  one  an  ad  valorem  tax  of 


Opinions  of  Chief  Justice  Dixon.  40 

one  per  cent.,  upon  the  real  and  personal  property  within 
the  recorded  plat  and  its  additions,  the  other  an  ad  valorem 
tax  of  one-half  of  one  per  cent.,  upon  the  real  and  personal 
property  without  the  plat  and  its  additions.  The  statu- 
tory requirements  as  to  the  levying  and  collection  of  taxes 
for  the  building  and  repairing  of  roads  and  bridges  and 
the  support  of  the  poor,  were  also  complied  with. 

But  since  there  is  some  difference  of  opinion  and  con- 
flict of  authority,  as  to  whether  the  word  "taxation,"  in 
its  ordinary  sense,  and  as  used  in  written  constitutions, 
does  or  does  not  include  assessments  made  for  the  purpose 
of  building,  repairing  and  improving  roads,  bridges  and 
streets ;  and  if  such  be  the  sense  in  which  it  is  used  in  our 
constitution,  whether  or  not  it  is  modified  or  controlled  by 
Sec.  3,  art.  XI,  of  the  same  instrument;  while  all  agree 
that  it  does  extend  to  taxes  levied  for  the  purpose  of  rev- 
enue, whether  such  revenue  be  applied  to  the  support  of 
town,  city,  county  or  state  government ;  and  that  in  this  re- 
spect it  is  not  affected  by  Sec.  3,  of  art.  XI,  we  propose 
to  confine  ourselves  to  that  branch  of  the  present  case 
which  involves  an  inquiry  into  the  power  of  the  legisla- 
ture to  provide  different  rates  of  taxation  upon  property 
within  the  same  municipal  corporation  for  revenue  pur- 
poses merely,  leaving  the  other  branch  of  the  case  to  be 
settled  in  some  one  of  the  numerous  cases  in  which  it  has 
been  raised  and  so  fully  and  ably  discussed,  at  this  pres- 
ent term. 

Taxes  are  defined  to  be  rates  or  sums  of  money  assessed 
on  the  personal  property  of  citizens  by  government,  for 
the  use  of  the  nation  or  state ;  or,  as  the  government  some- 
times exacts  from  individuals,  services  as  well  as  money, 
a  more  enlarged  and  correct  definition  would  be,  that  they 
are  burdens  or  charges  imposed  by  the  legislative  power  of 


41  Knowlton  v.  Board  of  Supervisors  of  Rock  Co. 

a  state  upon  persons  or  property  for  public  uses.  Taxa- 
tion is  the  act  of  laying  a  tax,  or  imposing  these  burdens 
or  charges  upon  persons  or  property  within  the  state.  It 
is  the  process  or  means  by  which  the  taxing  power  is  ex- 
ercised. The  power  of  taxation  is  one  of  the  essential 
attributes  of  sovereignty,  and  is  inherent  in  and  necessary 
to  the  existence  of  every  government.  In  republics  it  is 
vested  in  the  legislature,  and  in  the  absence  of  any  consti- 
tutional restrictions,  may  be  exercised  by  them,  both  as  to 
objects  and  modes,  to  any  extent  which  they  may  deem 
proper.  It  is  then  a  matter  of  legislative  discretion  with 
which  the  courts  can  seldom  or  never  interfere.  In  such 
cases  the  only  guaranties  against  an  abuse  of  this  discre- 
tion, by  harsh  or  unjust  taxation,  consists  in  the  integrity 
and  sense  of  justice  of  the  legislature,  their  "responsibility 
to  the  people,"  and  the  power  of  the  people,  through  the 
frequent  recurrence  of  elections  for  the  choice  of  new 
members  to  correct  any  evils  which  may  have  crept  in. 
Such  we  believe  has  been  the  case  with  nearly  all  and  is 
still  with  a  majority  of  the  states  comprising  the  union. 
In  several,  however,  and  among  others,  in  our  own,  the 
people  have  seen  fit,  by  constitutional  provisions,  to  limit 
and  direct  this  power,  and  thus  to  guard  against  its  abuse. 
The  theory  of  our  government  is,  that  socially  and  politi- 
cally all  are  equal,  and  that  special  or  exclusive,  social  or 
political  privileges  or  immunities,  cannot  be  granted,  and 
ought  not  to  be  enjoyed.  In  consonance  with  this  theory, 
that  of  taxation,  whether  as  the  subject  of  legislative  ac- 
tion, judicial  inquiry,  or  constitutional  law,  has  always 
been,  that  the  burdens  of  supporting  the  government 
should  be  borne  equally  by  all  the  individuals  composing 
it,  in  proportion  to  the  benefits  conferred,  and  that  the 
tax  payer  receives  for  the  money  exacted,  a  just  compen- 


Opinions  of  Chief  Justice  Dixon.  42 

sation  by  the  protection  afforded  his  person  and  property 
by  the  proper  application  of  the  tax.  This  principle  of 
justice  and  equality  which  requires  that  each  person 
should  contribute  towards  the  public  expenses  his  propor- 
tionate share,  according  to  the  advantages  which  he  re- 
ceives, lies  at  the  foundation  of  our  political  system ;  and, 
in  our  opinion,  it  was  to  give  to  it  a  greater  permanency 
and  force,  and  to  secure  its  more  rigid  observance,  that  the 
section  above  quoted  was  introduced  into  the  constitution. 
We  have  already  said  that  all  are  agreed  that  the  levying 
of  taxes  by  the  properly  constituted  authorities  of  a 
county,  city  or  town  government,  for  their  support,  is  as 
much  an  exercise  pf  the  taxing  power  as  when  they  are 
levied  directly  by  the  state  for  its  support.  There  is  no 
difference  on  principle  or  authority.  It  is  all  taxation 
for  the  purpose  of  revenue  or  the  support  of  the  govern- 
ment. The  government  of  the  state  cannot  be  carried  on 
except  through  the  medium  or  agency  of  these  municipal 
corporations  or  local  sovereignties,  and  their  acts  in  this 
behalf  are  as  much  the  acts  of  the  state,  as  if  it  directly 
performed  them  by  means  of  its  own  officers. 

We  are  of  opinion  that  the  rule  of  uniformity  pre- 
scribed by  the  constitution,'  applies  as  directly  to  the  ques- 
tion we  are  now  considering,  as  it  would  were  it  a  case 
where  the  legislature,  in  consideration  of  some  supposed 
advantage  which  one  portion  of  the  state  had  over  another, 
had  levied  upon  such  portion  an  ad  valorem  tax  of  double 
the  amount  which  was  levied  upon  the  residue.  For  as 
each  of  these  municipalities  or  local  subdivisions  of  gov- 
ernment are  created,  because  it  is  believed  that  the  inter- 
ests and  welfare  of  all  the  persons  embraced  within  its 
territorial  limits,  will  be  thereby  mutually  and  equally 
promoted,  it  follows  that  the  burdens  or  charges  for  its 


43  Knowlton  v.  Board  of  Supervisors  of  Rock  Co. 

support  or  revenue  should  be  equally  borne  by  all ;  and  as 
the  rights  and  interests  of  all  the  owners  of  property  are 
alike  benefited  and  protected  by  its  operation,  it  also  fol- 
lows that  when  property  is  the  object  of  taxation,  it  should 
all  alike,  in  proportion  to  its  value,  contribute  towards 
paying  the  expense  of  such  benefits  and  protection.  These 
are  plain  and  obvious  propositions  of  equity  and  justice, 
sustained  as  we  believe  by  the  very  letter  and  spirit  of  the 
constitution.  Its  mandate,  it  is  true,  is  very  brief,  but 
long  enough  for  all  practical  purposes;  long  enough  to 
embrace  within  it  clearly  and  concisely  the  doctrine  which 
the  framers  intended  to  establish,  viz. :  that  of  equality. 
"The  rule  of  taxation  shall  be  uniform,"  that  is  to  say,  the 
course  or  mode  of  proceeding  in  levying  or  laying  taxes 
shall  be  uniform ;  it  shall  in  all  cases  be  alike.  The  act  of 
laying  a  tax  on  property  consists  of  several  distinct  steps, 
such  as  the  assessment  or  fixing  of  its  value,  the  establish- 
ing of  the  rate,  etc. ;  and  in  order  to  have  the  rule  or  course 
of  proceeding  uniform,  each  step  taken  must  be  uniform. 
The  valuation  must  be  uniform,  the  rate  must  be  uniform. 
Thus  uniformity  in  such  proceeding  becomes  equality; 
and  there  can  be  no  uniform  rule  which  is  not  at  the  same 
time  an  equal  rule,  operating  alike  upon  all  the  taxable 
property  throughout  the  territorial  limits  of  the  state,  mu- 
nicipality or  local  subdivision  of  the  government,  within 
and  for  which  the  tax  is  to  be  raised.  The  legislature,  in 
accordance  with  sound  principle  and  the  spirit  of  the  con- 
stitution, have  provided  that  property  shall  be  taxed  ac- 
cording to  its  value;  but  in  the  instances  before  us,  have 
departed  from  them  by  providing  that  the  property,  real 
and  personal,  in  one  portion  of  a  municipal  corporation, 
throughout  which  it  is  supposed  to  be  alike  benefited,  shall 
bear  according  to  its  value  a  larger  amount  of  the  public 


Opinions  of  Chief  Justice  Dixon.  44 

charges  for  its  support  than  the 'property  in  the  other  por- 
tion. It  may  be  as  well  claimed  by  counsel  that  the  legis- 
lature acted  unwisely  or  perhaps  unjustly  in  including 
within  the  territorial  limits  of  the  city  so  much  farming 
or  agricultural  land,  but  that  is  not  a  matter  for  judicial 
correction.  Neither  is  it  a  matter  for  them  to  correct  by 
discrimination  in  taxation,  when  the  constitution  has  de- 
clared that  there  shall  be  no  discrimination.  The  remedy 
lies  in  a  repeal  or  an  amendment  of  the  charter. 

It  was  contended  in  argument  that  as  those  provisions 
fixed  one  uniform  rate  without  the  recorded  plats  and  an- 
other within  them,  thus  taxing  all  the  property  without 
alike,  and  all  within  alike,  they  do  not  infringe  the  con- 
stitution. In  other  words,  that,  for  the  purpose  of  taxa- 
tion, the  legislature  have  the  right  arbitrarily  to  divide 
up  and  classify  the  property  of  the  citizens,  and  having 
done  so,  they  do  not  violate  the  constitutional  rule  of  uni- 
formity, provided  all  the  property  within  a  given  class  is 
rated  alike. 

The  answer  to  this  argument  is,  that  it  creates  different 
rules  of  taxation  to  the  number  of  which  there  is  no  limit, 
except  that  fixed  by  legislative  discretion,  whilst  the  con- 
stitution establishes  but  one  fixed,  unbending  uniform  rule 
upon  the  subject.  It  is  believed  that  if  the  legislature 
can,  by  classification  thus  arbitrarily  and  without  regard 
to  value,  discriminate  in  the  same  municipal  corporation 
between  personal  and  real  property  within,  and  personal 
and  real  property  without,  a  recorded  plat,  they  can  also, 
by  the  same  means,  discriminate  between  lands  used  for 
one  purpose  and  those  used  for  another;  such  as  lands 
used  for  growing  wheat  and  those  used  for  growing  corn, 
or  any  other  crop;  meadow  lands  and  pasture  lands;  cul- 
tivated and  uncultivated  lands ;  or  they  can  classify  by  the 


45  Knowlfon  v.  Board  of  Supervisors  of  Rock  Co. 

description,  such  as  odd  numbered  lots  and  blocks  and 
even  numbered  ones,  or  odd  and  even  numbered  sections. 
Personal  property  can  be  classified  by  its  character,  use  or 
description,  or,  as  in  the  present  case,  by  its  location,  and 
thus  the  rules  of  taxation  may  be  multiplied  to  an  extent 
equal  in  number  to  the  different  kinds,  uses,  descriptions 
and  locations  of  real  and  personal  property.  We  do  not 
see  why  the  system  may  not  be  carried  further  and  the 
classification  be  made  by  the  character,  trade,  profession 
or  business  of  the  owners.  For  certainly  this  rule  of  uni- 
formity can  as  well  be  applied  to  such  a  classification  as 
any  other,  and  thus  the  constitutional  provision  be  saved 
intact.  Such  a  construction  would  make  the  constitution 
operative  only  to  the  extent  of  prohibiting  the  legislature 
from  discriminating  in  favor  of  particular  individuals, 
and  would  reduce  the  people,  while  considering  so  grave 
and  important  a  proposition,  to  the  ridiculous  attitude  of 
saying  to  the  legislature,  "you  shall  not  discriminate  be- 
tween single  individuals  or  corporations,  but  you  may  di- 
vide the  citizens  up  into  different  classes  as  the  followers 
of  different  trades,  professions,  or  kinds  of  business,  or  as 
the  owners  of  different  species  or  descriptions  of  prop- 
erty, and  legislate  for  one  class  and  against  another,  as 
much  as  you  please,  provided  you  serve  all  of  the  favored 
or  unfavored  classes  alike,"  thus  affording  a  direct  and 
solemn  constitutional  sanction  to  a  system  of  taxation  so 
manifestly  and  grossly  unjust,  that  it  will  not  find  an 
apologist  anywhere,  at  least  outside  of  those  who  are  the 
recipients  of  its  favors.  We  do  not  believe  the  framers 
of  that  instrument  intended  such  a  construction,  and  there- 
fore cannot  adopt  it. 

On  the  other  hand,  we  are  of  the  opinion  that  these  are 
the  very  mischiefs  which  they  intended  to  guard  against 


Opinions  of  Chief  Justice  Dixon.  46 

and  prevent.  Single  individuals  have  seldom  acquired 
such  an  influence  over  the  legislative  mind  as  to  secure  to 
themselves  the  advantages  arising  from  such  legislation: 
There  was  little  danger  to  be  apprehended  from  that 
source ;  but  the  combined  influence  and  efforts  of  corpora- 
tions and  classes  had.  Such  evils  had  been  sorely  felt  in 
many  of  the  older  states ;  it  was  against  them  and  all  other 
unjust  discriminations,  that  the  people  intended  to  pro- 
vide. It  cannot  change  the  principle,  nor  is  it  a  source 
of  consolation  to  the  unfortunate  individuals  or  classes 
whose  money  is  thus  extorted  from  them,  that  it  is  dis- 
tributed by  government  among  many,  instead  of  being  ap- 
plied to  the  benefit  of  a  single  person  or  corporation.  It 
is  also  contended  that  under  the  last  clause  of  the  section, 
"and  taxes  shall  be  levied  upon  such  property  as  the  legis- 
lature shall  prescribe,"  this  discrimination  is  sanctioned; 
that  by  it  the  legislature  have  the  right,  in  prescribing  the 
property  which  shall  bear  the  burdens  of  taxation,  to  spec- 
ify certain  kinds  or  species  of  property,  and  to  entirely 
omit  or  exempt  others ;  and  that  if  they  have  the  right  to 
wholly  exempt,  they  can  do  so  partially,  by  saying  that  it 
shall  pay  a  certain  portion  of  the  taxes,  or  that  it  shall  be 
taxed  at  a  certain  rate  lower  than  other  taxable  property, 
or  that  it  shall  pay  a  certain  sum  in  lieu  of  all  other  taxa- 
tion. Without  stopping  to  consider  whether  this  clause 
does  or  does  not  confer  upon  the  legislature  a  power  of 
general  or  specific  discrimination  as  to  what  property  shall 
be  taxed,  as  is  contended  by  some  that  it  does  not,  but  con- 
ceding that  it  does,  and  that  the  legislature  may,  by  omit- 
ting to  prescribe,  exempt  certain  property  from  taxation, 
and  that  its  effect  is  the  same  as  if  it  contained  a  distinct 
grant  of  power  to  exempt,  still  we  think  this  argument 
must  fail;  for  the  very  moment  that  the  legislature  say 


47  Knowllon  v.  Board  of  Supervisors  of  Rock  Co. 

that  a  specific  article  or  kind  of  property  shall  be  taxed,  or 
shall  contribute  at  all  towards  the  expense  of  government, 
from  that  very  moment  the  first  clause  of  the  section  takes 
effect,  and  it  must  be  taxed  by  the  uniform  rule.  The 
legislature  can  only  "prescribe,"  and  when  they  have  done 
that,  the  first  clause  of  the  section  governs  the  residue  of 
the  proceeding.  There  cannot  be  any  medium  ground 
between  absolute  exemption  and  uniform  taxation. 

Upon  the  argument  we  were  referred  to,  and  much 
stress  was  laid  by  the  defendant's  counsel  as  an  authority 
sustaining  his  positions,  upon  the  decisions  of  this  court 
in  the  case  of  The  Milwaukee  and  Mississippi  Eailroad 
Co.  v.  The  Board  of  Supervisors  of  the  County  of  Wau- 
kesha  and  others,  made  at  the  June  term,  1855.  Upon 
examination  of  the  records  and  files  of  the  court  in  that 
case,  we  can  find  neither  head  note  nor  opinion.  As  a 
matter  of  fact,  we  are  told  that  none  were  ever  written. 
We  are  therefore  without  any  authoritative  information  as 
to  the  points  there  determined,  or  the  views  taken  by  the 
court;  and  under  such  circumstances,  we  can  hardly  say 
that  we  should  not  consider  the  questions  there  involved 
as  still  open.  However,  from  the  best  information  we 
have  been  able  to  obtain,  we  are  relieved  from  any  embar- 
rassment growing  out  of  the  doctrines  which  it  was 
claimed  by  counsel  were  established  by  it;  as  we  learn 
that  it  was  determined  by  the  court  that  no  question  of 
the  exercise  of  the  taxing  power  was  involved  in  it.  The 
written  opinion  of  the  circuit  judge  in  the  same  case  will 
be  found  reported  in  volume  two,  page  616,  of  the  Ameri- 
can Law  Register.  The  majority  of  the  court  have  with 
great  confidence  come  to  the  conclusion  that  so  much  of 
Sec.  5,  of  chap.  179,  of  the  Local  Laws  of  1854,  as  pro- 
vides that  the  real  and  personal  property  within  the  ter- 


Opinions  of  Chief  Justice  Dixon.  48 

ritorial  limits  of  the  city  of  Janesville,  and  not  included 
within  the  recorded  plat  of  the  village  of  Janesville,  or 
of  any  of  the  additions  to  said  village,  which  may  be  used, 
occupied  or  reserved  for  agricultural  or  horticultural  pur- 
poses, shall  in  no  case  be  subject  to  an  annual  tax  to  defray 
the  current  expenses  of  said  city,  exceeding  one  half  of 
one  per  cent.,  while  by  a  previously  existing  law,  the  resi- 
due of  the  real  and  personal  property  within  said  city  is 
liable  to  a  tax  of  one  per  cent.,  for  the  same  purpose,  is 
unconstitutional  and  void;  and  that,  therefore,  the  judg- 
ment of  the  circuit  court  overruling  the  demurrer  to  the 
complaint  in  this  action  must  be  affirmed.  Inasmuch  as 
the  support  of  the  poor  is  a  matter  of  common  concern, 
the  expense  of  .which  is  to  be  borne  by  the  whole  corpora- 
tion, we  may  add  that  in  that  respect  also  the  section  is 
unconstitutional  and  void. 
Judgment  affirmed. 

NOTE. 

Knowlton  v.  Eock  County,  supra,  has  been  cited  with 
approval  in  the  Wisconsin  Supreme  Court,  as  follows: 
Weeks  v.  City  of  Milwaukee,  10  Wis.  262;  Lumsden  v. 
Cross,  10  Wis.  283 ;  Atty.  Gen.  v.  Plankroad  Co.,  11  Wis. 
37,  38,  39,  42,  46,  48 ;  Reedsburg  Bank  v.  Hastings  12 
Wis.  48 ;  Slauson  v.  City  of  Racine,  13  Wis.  404,  405 ; 
Miltmore  v.  Supvs.  of  Rock  County,  15  Wis.  10,  11 ; 
Kneeland  v.  City  of  Milwaukee,  15  Wis.  462,  466,  467 ; 
Knowlton  v.  Supvs.  of  Rock  County,  15  Wis.  601 ;  Dean 
v.  Gleason,  16  Wis.  10 ;  Tallman  v.  City  of  Janesville, 
17  Wis.  74;  City  of  Janesville  v.  Markoe,  18  Wis.  356; 
Curtis's  Adm'r  v.  Whipple,  24  Wis.  355 ;  Hale  v.  City  of 
Kenosha,  29  Wis.  603,  605 ;  Whittaker  v.  City  of  Janes- 
ville, 33  Wis.  89 ;  Atty.  Gen.  v.  City  of  Eau  Claire,  37 
Wis.  438 ;  Marsh  v.  Supvs.  of  Clark  County,  42  Wis.  511, 
513;  Flanders  v.  Town  of  Merrimack,  48  Wis.  571;  Dal- 
rymple  v.  Milwaukee,  53  Wis.  184;  Richland  County  v. 


49  Note  to  Knowlton  v.  Board  of  Supervisors. 

Village  of  Richland  Center,  59  Wis.  596 ;  Bradley  v.  Lin- 
coln County,  60  Wis.  75 ;  Abbott  v.  McFetridge,  64  Wis. 
141;  G.  B/&  M.  Co.  v.  Ontagamie  County,  76  Wis.  589; 
Ellis  v.  Thorne,  112  Wis.  86,  55  L.  R  A.  958 ;  0.  &  K 
V,'.  Ky.  v.  State,  128  Wis.  553,  108  K  W.  567,  569,  575; 
Stated.  C.  &  K  W.  Ky.,  128  Wis.  449,  108  N.  W.  604, 
617,  622,  623;  Nunnemacher  v.  State  (Inheritance  tax), 
129  Wis. ,  108  K  W.  634. 

It  was  commented  upon  disapprovingly  by  the  same 
court  in :  Wisconsin  Cent.  Ry.  v.  Taylor  County,  52  Wis. 
68,  69,  71,  73,  75, 1  Am.  &  Eng.  Ry.  Cas.  549. 

And  by  the  Federal  Supreme  Court  in  Foster  v.  Pryor, 
189  U.  S.  334. 

It  has  been  cited  with  approval  outside  of  the  Wiscon- 
sin Supreme  Court,  as  follows:  Moog  v.  Randolph,  77 
Ala.  603 ;  Cole  v.  White  County,  32  Ark.  51 ;  Williamson 
v.  Mimms,  49  Ark.  350 ;  Palmes  v.  L.  &  N".  Ry.,  19  Fla. 
267;  Friesleben  v.  Shallcross  (Del),  9  Houst.  98,  8  L. 
R.  A.  353;  Verdery  v.  Village  of  Summerville,  82  Ga. 
141 ;  State  ex  rel.  Lewis  v.  Smith,  158  Ind.  543,  63  L.  R. 
A.  128 ;  Commrs.  of  Ottawa  Co.  v.  Nelson,  19  Kan.  238, 
27  Am.  R  104;  Cook  v.  Auditor  Gen.,  79  Mich.  110; 
City  of  Kansas  v.  Cook,  69  Mo.  128 ;  State  v.  H.  &  St. 
J.  Ry.,  75  Mo.  212;  Hamilton  v.  Rosenblatt,  8  Mo.  Ap. 
240 ;  Johnson  v.  Hahn,  4  Neb.  149 ;  Redmond  v.  Town 
of  Tarboro,  168  K  Car.  127,  7  L.  R  A.  540 ;  Tucker  v. 
Kenniston,  47  K  H.  271,  93  Am.  Dec.  431;  State  v. 
Express  Co.,  60  K  H.  243 ;  Vreeland  v.  Jersey  City,  43 
N.  J.  L.  138 ;  State  Board  of  Assessors  v.  Central  Ry.,  48 
N.  J.  L.  349 ;  San  Antonio  v.  Jones,  28  Tex.  31 ;  Gilman 
v.  City  of  Sheboygan  (U.  S.)  2  Black,  515. 

Knowlton  v.  Rock  County,  supra,  has  been  cited  in  notes 
to  the  following  cases  reported  in  L.  R.  A.,  Am.  Dec.,  Am. 
St.  Rep.,  and  Fed.  Rep.,  including  valuable  collections  of 
authorities. 

Lawyers'  Reports  Annotated:  Daly  v.  Morgan  (69  Md. 
460),  1  L.  R  A.  758;  Chaddock  v.  Day  (75  Mich.  527), 
4  L.  R  A.  809 ;  Mayor  of  Savannah  v.  Weed  (87  Ga.  513), 
8  L.  R  A.  271;  Miller  v.  Cook  (135  IlL  190),  10  L.  R 


Opinions  of  Chief  Justice  Dixon.  50 

A.  294;  Cook  v.  Portland  (20  Ore.  580),  13  L.  R.  A.  533; 
Odlin  v.  Woodruff  (31  Fla.  160),  22  L.  R  A.  705 ;  Briggs 
v.  Russellville  (99  Ky.  515),  34  L.  R.  A.  193;  San  Diego 
v.  Irrigation  Dist.  (108  Cal.  189),  35  L.  R.  A.  35;  State 
Board,  etc.,  v.  People  ex  rel.  Goggin  (191  El.  529),  58 
L.  R  A.  608;  Bacon  v.  Board  of  State  Tax  Comrs.  (126 
Mich.  22),  60  L.  R  A.  361,  362. 

American  Decisions:  Holland  v.  Mayor,  etc.,  of  Balti- 
more (11  Md.  186),  69  Am.  Dec.  201. 

American  State  Reports:  New  Orleans  v.  Tel.  Co.  (40 
La.  Ann.  41),  8  Am.  St.  Rep.  506-7,  510. 

Federal  Reports:  Railroad  Tax  Cases,  13  Fed.  788; 
People  &  Counties  of  Cal.  v.  Railroads,  18  Fed.  449. 

It  is  useless  to  add  to  the  literature  that  has  grown  up 
around  this  case  by  any  extended  comment  here.  All  that 
can  profitably  be  said  on  the  subject,  and  perhaps  more, 
will  be  found  in  the  cases  cited  supra.  Much  of  the  con- 
fusion regarding  it  has  arisen  from  the  failure  of  courts 
to  distinguish  between  a  direct  tax  on  property,  which  is 
governed  by  the  constitutional  rule  of  uniformity,  and 
license  fees  or  privilege  taxes  and  other  exactions,  which, 
while  they  result  in  producing  revenue,  are  not  a  tax  on 
property  within  the  constitutional  provision  considered  in 
the  Knowlton  case.  Eminent  judges,  including  Mr.  Jus- 
tice Cassoday,  of  the  Wisconsin  Supreme  Court,  now 
Chief  Justice  of  that  court,  have  failed  to  make  this  dis- 
tinction, and  because  of  such  failure  have  questioned  the 
correctness  of  the  decision  in  the  Knowlton  case.  (See 
Wisconsin  &c.  Ry.  v.  Taylor  County,  52  Wis.  37,  supra.} 
The  Supreme  Court  of  Wisconsin,  however,  in  the  late 
cases  cited  supra,  in  108  N.  W.,  and  128  Wis.,  made  per- 
haps the  most  elaborate  investigation  of  the  whole  subject 
to  be  found  in  the  books,  and  demonstrated  that  the  deci- 
sion in  the  Knowlton  case  is,  and  since  it  was  made  has 
been,  the  law  of  the  State,  and  that  it  correctly  interprets 
the  constitutional  provision  discussed  in  it. 


51  Von  Baumbach  v.  Bade,  d  al. 


Von  Baumbach  v.  Bade,  et  al. 

June  Term,  1859. 
(9  Wis.  559.) 

The  chief  interest  in  this  opinion  lies  in  its  discussion 
of  the  extent  to  which  existing  remedies  may  be  changed 
by  legislative  enactments. 

The  facts  sufficiently  appear  from  the  opinion. 

The  propositions  of  law  decided  in  this  case  are  stated 
here  substantially  in  the  language  of  the  Reporter  of  the 
Court,  and  are  as  follows: 

The  act  of  May  15,  1858,  which  provided  that  defend- 
ants in  actions  to  foreclose  mortgages  which  were  ex- 
ecuted prior  to  its  passage,  should  have  six  months' 
time  in  which  to  answer  the  complaint,  and  that  the 
mortgaged  premises  should  not  be  sold  upon  the  judg- 
ments, except  upon  six  months'  previous  notice  of 
the  time  and  place,  does  not  violate  the  provisions  of 
the  constitution  of  the  United  States,  and  of  the  con- 
stitution of  Wisconsin,  which  declares  that  no  laws 
shall  be  passed  impairing  the  obligations  of  contracts ; 
nor  is  it  in  conflict  with  Sec.  9,  of  Art.  I,  of  the  con- 
stitution of  Wisconsin,  which  declares  that  "every 
person  is  entitled  to  a  certain  remedy  in  the  laws, 
for  all  the  injuries  or  wrongs,  which  he  may  receive 
in  his  person,  property  or  character." 

Although  Sec.  9,  Art.  I,  of  the  constitution  of  the  state 
of  Wisconsin,  declares  that  "every  person  is  entitled 
to  a  remedy  in  the  laws  for  all  injuries  or  wrongs, 


Opinions  of  Chief  Justice  Dixon  52 

which  he  may  receive  in  his  person,  property  or  char- 
acter;" and,  although  the  remedy  afforded  by  exist- 
ing laws  enters  into  and  forms  a  part  of  the  obliga- 
tion of  contracts,  yet  it  is  in  the  power  of  the  legisla- 
ture to  amend,  change  or  modify  the  laws  governing 
proceedings  in  courts,  both  as  to  past  and  future  con- 
tracts, if  they  leave  the  parties  a  substantial  remedy, 
according  to  the  course  of  justice  as  it  existed  at  the 
time  the  contract  was  made. 

The  legislature  may  alter  or  vary  existing  remedies  pro- 
vided that  in  so  doing  their  nature  and  extent  is  not 
so  changed  as  materially  to  impair  the  rights  and  in- 
terests of  the  parties. 

The  legislature  may  enact  a  statute  of  limitation  by 
which  the  remedy  upon  existing  contracts,  if  not  pros- 
ecuted within  a  specified  time,  may  be  entirely  de- 
feated. So  it  may  pass  acts  abolishing  imprison- 
ment for  debts  previously  contracted,  recording  acts 
by  which  the  older  grant  of  real  estate  otherwise 
valid,  is  postponed  and  rendered  void,  as  to  a 
younger  one,  and  other  acts  of  a  similar  nature;  and 
yet,  such  acts  will  be  sustained  as  constitutional  and 
binding. 

So  far  as  the  constitution  of  the  United  States,  or  Wis- 
consin, reaches  or  affects  the  alterations  of  the  rem- 
edy on  contracts,  such  alterations  are  matters  of 
sound  discretion  with  the  legislature.  It  has  the 
power  within  the  limits  of  the  constitution,  to  control 
the  remedy  and  to  determine  whether  any  change  or 
modification  of  it  is  necessary,  and  what  change,  and 
whether  the  parties  to  the  contract  are  left  with  a  sub- 
stantial remedy  according  to  law,  as  it  existed  before 
the  change,  subject  however  to  a  final  determination 


53  Von  Baumbach  v.  Bade,  et  at. 

by  the  courts  of  the  constitutionality  of  such  modifi- 
cations or  changes. 

By  the  act  of  the  15th  of  May,  1858,  the  remedy  of 
mortgagees  as  it  previously  existed,  is  substantially 
continued.  No  new  conditions  are  engrafted  on  the 
remedy,  the  form  and  mode  of  proceedings  in  the 
action,  the  nature  and  extent  of  the  judgment,  and 
the  rights  under  it  are  the  same  as  before,  except  only 
in  the  matter  of  the  time  which  is  required  for  these 
purposes;  and  such  a  change  does  not  infringe  or 
materially  impair  the  obligation  of  the  contract. 

The  legislature  may  regulate  at  pleasure  the  modes  of 
proceeding  in  the  courts  in  relation  to  past  contracts 
as  well  as  future  ones.  It  may  limit  or  extend  the 
time  for  answering,  or  taking  any  other  step  in  an 
action  in  the  courts.  The  only  limit  or  qualification 
to  this  power  is,  that  the  legislature  must  confine 
their  action  within  the  bounds  of  reason  and  justice, 
and  not  so  prolong  the  time  in  which  legal  proceed- 
ings are  to  be  had,  as  to  render  them  futile  and  use- 
less in  the  hands  of  the  creditor,  or  to  seriously  im- 
pair his  rights  and  securities. 

Although  changes  in  remedies  are  in  general  unwise 
and  unjust,  yet  if  for  any  cause  the  public  good  de- 
mands a  relaxation  of  them,  it  becomes  the  duty  of 
the  legislature,  by  proper  and  reasonable  modifica- 
tions, so  to  change  them  as  to  meet  the  wants  of  the 
community  and  afford  the  relief  which  the  public  good 
demands. 

In  determining  whether  such  changes  are  reasonable 
and  just,  and  demanded  by  the  exigencies  of  the 
times,  courts  must  look  behind  the  statute  and  take 
notice  of  the  causes  which  led  to  its  enactment. 


Opinions  of  Chief  Justice  Dixon.  54 

DIXON,  Chief  Justice. 

This  case  comes  before  the  court  upon  an  appeal  from 
the  judgment  of  the  circuit  court  of  Milwaukee  county, 
rendered  on  the  10th  day  of  July,  1858. 

The  facts,  as  they  appear  from  the  record,  are  these: 
On  the  2d  day  of  June,  1857,  the  defendant,  Bade,  exe- 
cuted and  delivered  to  the  plaintiff  a  bond,  conditioned 
for  the  payment  of  six  hundred  and  fifty  dollars  on  the 
first  day  of  March,  1858,  with  interest  at  the  rate  of 
twelve  per  cent,  per  annum;  and  to  secure  the  payment 
of  the  sum  mentioned  in  the  bond,  with  the  interest,  did, 
at  the  same  time,  together  with  his  wife,  execute  and  de- 
liver to  the  plaintiff  a  mortgage  conditioned  for  the  pay- 
ment of  said  sum  of  money  and  interest,  according  to  the 
condition  of  the  bond,  by  which  he  mortgaged  to  the 
plaintiff  in  fee,  certain  lands,  situated  in  the  city  of  Mil- 
waukee. The  mortgage  also  contained  the  usual  covenant 
or  agreement,  that  in  case  of  a  failure  to  pay  the  principal 
sum  or  any  interest  which  might  accrue  thereon,  or  any 
part  thereof,  or  to  pay  the  taxes,  etc. ;  that  the  plaintiff 
might  sell  the  same  at  public  auction,  pursuant  to  the 
provisions  of  the  statute  authorizing  the  foreclosure  of 
mortgages  by  advertisement. 

Neither  the  principal  nor  interest  having  been  paid,  the 
plaintiff,  on  the  22d  day  of  May,  1858,  by  the  service  of 
summons  on  the  defendant,  commenced  his  action  to  fore- 
close the  mortgage.  After  the  making  of  the  mortgage 
and  before  the  commencement  of  the  action,  the  legisla- 
ture passed  an  act,  chapter  113,  Laws  of  1858,  approved 
May  15th,  and  published  May  18th,  1858,  now  repealed, 
the  first  section  of  which  provided  that,  "in  all  actions  and 
proceedings  at  law  thereafter  commenced  under  that  por- 
tion of  chapter  34  of  the  revised  statutes  of  1849,  entitled, 


55  Von  Baumbach  v.  Bade,  et  al 

'of  the  powers  and  proceedings  of  courts  in  chancery  on 
bills  for  the  foreclosure  or  satisfaction  of  mortgages/  the 
defendant  or  defendants  in  such  actions  or  proceedings 
should  have  six  months'  time  to  answer  the  bill  of  com- 
plaint filed  therein  after  service  of  summons  or  publica- 
tion of  notice,  as  then  required  by  law;  and  that  no  de- 
fault should  be  entered  in  any  such  action,  until  after  the 
expiration  of  such  time,  any  law  to  the  contrary  notwith- 
standing." The  second  section  provided  that  "whenever  in 
such  action  or  proceeding,  judgment  should  be  entered  or 
an  order  made  by  the  court  for  the  sale  of  mortgaged 
premises,  it  should  before  (be  for)  the  sale  of  said  prem- 
ises, upon  six  months'  notice  of  such  sale,  as  thereinafter 
provided;  and  that  in  all  cases  where  before  the  passage 
of  the  act,  judgment  had  been  rendered  in  any  of  the 
courts  of  this  state,  or  in  the  district  court  of  the  United 
States  for  the  district  of  Wisconsin,  in  an  action  to  fore- 
close a  mortgage  or  mortgages,  or  where  an  order  or  de- 
cree had  been  made  by  any  such  court,  for  the  sale  of 
mortgaged  premises,  the  mortgaged  premises  should  be 
sold  only  upon  six  months'  notice  given  of  the  time  and 
place  of  such  sale,  which  notice  should  be  given  in  the 
manner  provided  in  the  act  for  giving  notices  of  the  sale 
of  mortgaged  premises." 

By  the  third  section  it  was  made  the  duty  of  the  sheriff, 
deputy  sheriff,  or  other  officer  appointed  by  the  court,  to 
make  sale  of  the  premises  immediately  after  receiving  a 
copy  of  the  order  for  the  sale  of  mortgaged  premises,  upon 
which  such  proceedings  had  been  instituted,  to  publish, 
or  cause  to  be  published,  notice  of  the  sale  of  such  prem- 
ises, (unless  otherwise  ordered  by  the  court,)  describing 
the  same  therein,  as  then  required  by  law,  in  some  news- 
paper of  general  circulation  in  the  county  in  which  said 


Opinions  of  Chief  Justice  Dixon.  56 

premises  were  situated,  at  least  once  in  each  month,  for 
the  period  of  six  months  before  sale  of  the  same;  and  if 
no  newspaper  shall  be  printed  or  published  in  said  county, 
then  the  same  should  be  published  in  some  newspaper  in 
an  adjoining  county,  for  the  time  aforesaid.     It  was  fur- 
ther declared  by  said  section,  that  no  sale  of  mortgaged 
premises,  under  foreclosure  by  action,   should  be  valid, 
unless  made  in  accordance  with  the  provisions  of  said  act. 
On  the   10th  day  of  June  following,  the  defendant, 
Bade,  by  his  attorneys,  gave  notice  of  his  appearance  in 
the  action.     On  the  25th  he  was  served  with  a  notice  that 
on  the  3d  day  of  July,  the  plaintiff  would  apply  to  the 
court  for  judgment.     On  the  3d  day  of  July  an  order  of 
reference  was  made  by  the  court  to  a  referee,  to  ascertain 
and  report  the  amount  due  to  the  plaintiff  on  the  bond 
and  mortgage.     The  referee  made  his  report,  which  was 
confirmed,  and  on  the  10th  day  of  July  the  usual  judg- 
ment of  foreclosure,  and  for  the  sale  of  the  mortgaged 
premises  was  made,  except  that  the  sheriff  was  directed  to 
give  public  notice  of  the  time  and  place  of  sale  by  adver- 
tisement in  a  newspaper  published  in  the  city  and  county 
of  Milwaukee  once  in  each  week  for  six  successive  weeks, 
and  twice  a  week  for  the  last  three  weeks  of  said  six. 
From  this  judgment  the  defendant  appealed,  and  insists 
that  it  is  erroneous  and  ought  to  be  reversed :  1st.  Because 
judgment  by  default  was  entered  against  him  before  the 
expiration  of  the  six  months,  after  service  upon  him  of 
the  summons,  within  which  he  claimed  the  right  to  answer 
the  complaint;  and  2d.  Because  the  mortgaged  premises 
were  ordered  to  be  sold,  upon  six  weeks'  instead  of  six 
months'  notice  of  the  time  and  place  of  sale. 

By  the  law,  as  it  stood  prior  to  the  passage  of  the  act 
above  referred  to,  defendants  in  foreclosure,  as  in  all  other 


57  Von  Baymbach  v.  Bade,  et  al. 

actions,  had  but  twenty  days  after  service  upon  them  of 
the  summons,  in  the  manner  prescribed  by  law,  in  which 
to  answer  the  complaint,  and  if  no  answer  was  made 
within  the  time,  judgment  by  default  might  have  been 
taken.  There  was  no  statutory  provision  fixing  the  time 
or  manner  of  sale  in  such  cases.  The  practice  (regulated 
by  rule  of  court  in  analogy  to  sales  of  real  estate  on  exe- 
cution), was  to  sell  on  six  weeks'  previous  notice  of  the 
time  and  place  of  sales,  unless  the  court  otherwise  ordered. 
Such  was  the  law  governing  at  the  time  of  answering,  and 
the  entry  of  judgment  by  default;  and  such  the  practice 
of  the  courts,  as  to  notice  and  time  of  sale,  at  the  time 
the  bond  and  mortgage  in  question  were  executed  and  de- 
livered. 

On  the  part  of  the  plaintiff  it  is  contended  that  the  cir- 
cuit court  properly  disregarded  the  provisions  of  the  act, 
and  proceeded  to  render  judgment  and  direct  a  sale  of  the 
mortgaged  premises  as  if  it  had  not  been  passed.  His 
counsel  insists  that  the  act  is  unconstitutional  and  void, 
because  its  provisions  in  relation  to  existing  contracts  vio- 
late the  first  subdivision  of  Sec.  10,  Art.  I,  of  the  consti- 
tution of  the  United  States;  and  the  12th  section  of  the 
first  article  of  the  constitution  of  this  state,  which  pro- 
hibits the  passing  of  any  law  impairing  the  obligation  of 
-contract.  The  determination  of  the  case  depends  upon 
the  correctness  of  the  position  here  assumed  by  the  coun- 
sel for  the  plaintiff.  The  circuit  court  sustained  them  in 
it.  If  they  are  right  the  judgment  must  be  affirmed,  if 
wrong  it  must  be  reversed.  This  is  not  the  first  case  in 
which  this  question  has  been  raised  and  discussed  at  the 
bar  of  this  court.  It  has  during  the  present  term,  been 
argued  in  several  cases,  but  as  they  were  all  actions  pend- 
ing at  the  time  of  the  passage  of  the  act,  and  as  we  felt 


Opinions  of  Chief  Justice  Dixon.  58 

compelled  to  hold,  that  the  act  did  not  apply  to  such  ac- 
tions, it  became  unnecessary  and  improper  for  us  to  con- 
sider it.  Owing  to  the  vast  interests  affected  hy  the  act, 
the  variety  of  opinions  entertained  by  different  members 
of  the  profession  in  relation  to  its  validity,  the  conflict  of 
decisions  upon  it  in  the  several  circuit  courts,  and  the  de- 
gree of  dissatisfaction  and  opposition  with  which  it  was 
met  in  various  quarters,  the  question  becomes  one  of  much 
importance. 

The  question,  whether  contracts  derive  their  obligation 
solely  from  the  acts  and  stipulations  of  the  parties  inde- 
pendent of  the  remedy  given  by  law  at  the  time  they  are 
made,  to  enforce  them,  or  whether  the  obligation  consists 
in  part  in  the  duty  of  performance,  as  it  is  then  recognized 
and  enforced  by  the  laws,  has  been  the  source  of  much  per- 
plexing debate  and  doubt,  and  in  its  solution  "all  the 
acumen  which  controversy  can  give  to  the  human  mind 
has  been  employed."  It  is  not  however  either  a  new  or 
an  unsettled  question.  If  it  were,  or  if  we  were  permit- 
ted to  determine  it  with  reference  alone  to  the  provisions 
of  the  constitution  of  this  state,  as  would  have  been  had 
Sec.  9,  of  Art.  I,  been  omitted,  then,  however  much  I 
might  be  inclined  to  yield  to  the  powerful  logic  of  Chief 
Justice  Marshall  in  delivering  the  opinion  of  the  minority 
of  the  court  in  the  case  of  Ogden  v.  Saunders,  12  Wheaton, 
322 ;  and  the  forcible  reasoning  of  Mr.  Justice  McLean 
dissenting,  in  the  case  of  Bronson  v.  Kinzie,  1  How.  311, 
and  come  with  them  to  the  conclusion  that  the  former  po- 
sition is  correct,  and  that  the  legislatures  may  vary,  or  re- 
peal remedial  laws  at  their  pleasure;  yet,  as  Sec.  9,  of 
Art.  I,  of  the  constitution  of  this  state  declares  that  "every 
person  is  entitled  to  a  certain  remedy  in  the  laws  for  all 
injuries  or  wrongs  which  he  may  receive  in  his  person, 


59  Von  Baumbach  v.  Bade,  et  al. 

property  or  character ;"  and  as  it  has,  with  reference  to  the 
constitution  of  the  United  States,  been  authoritatively  de- 
termined by  the  supreme  court  in  the  case  last  above  cited, 
and  in  the  subsequent  case  of  McCracken  v.  Hayward,  2 
How.  608,  that  the  remedy  afforded  by  the  existing  laws, 
enters  into  and  forms  a  part  of  the  obligation  of  the  con- 
tracts, I  feel  bound  in  the  decision  of  the  question,  to  be 
governed  by  the  principles  there  established,  and  to  treat 
it  with  reference  to  them.  The  doctrines  there  established 
are,  so  far  as  I  can  learn,  the  settled  doctrines  of  all  the 
states  with  reference  to  the  same  provisions  in  their  own 
and  the  federal  constitutions.  See  Morse  v.  Gould,  1  Ker- 
nan,  281,  and  cases  there  cited. 

The  construction  which  has  been  thus  put  upon  that 
clause  of  the  constitution  of  the  United  States,  which  pro- 
hibits the  passage  of  laws  impairing  the  obligation  of  con- 
tracts, makes  it  equivalent,  in  its  effect,  to  the  section  of 
the  constitution  of  this  state  to  which  I  have  last  referred ; 
and  hence  the  rules  which  have  been  established  in  refer- 
ence to  the  former,  may  be  deemed  proper  guides  for  our 
action  with  respect  to  the  latter.  I  shall,  therefore, 
whilst  acknowledging  the  binding  force  of  the  latter,  as  the 
paramount  law  of  the  state,  discuss  the  question  with  ref- 
erence to  the  former  provision  alone,  and  the  adjudications 
which  have  been  made  under  it. 

It  being  determined  that  the  remedy,  or  laws  for  the 
enforcement  of  a  contract  existing  at  the  time  it  is  made, 
enter  into  it  and  form  a  part  of  its  obligation,  it  might 
perhaps  be  supposed  that  any  repeal,  change  or  amend- 
ment of  such  remedy,  or  laws  which  in  any  manner  de- 
layed or  rendered  the  enforcement  of  the  contract  less 
complete  and  effectual,  would  be  unconstitutional  and  void. 
But  such  is  not  the  case.  All  the  authorities  agree  that  it 


Opinions  of  Chief  Justice  Dixon.  60 

is  within  the  power  of  the  legislature  to  repeal,  amend, 
change,  or  modify  the  laws  governing  proceedings  in 
courts,  both  as  to  past  and  future  contracts,  so  that  they 
leave  the  parties  a  substantial  remedy,  according  to  the 
course  of  justice  as  it  existed  at  the  time  the  contract  was 
made. 

In  the  principal  case  of  Bronson  v.  Kinzie,  supra,  the 
court  says:  "Undoubtedly  a  state  may  regulate,  at  pleas- 
ure, the  modes  of  proceeding  in  its  courts  in  relation  to 
past  contracts  as  well  as  future.  It  may,  for  example, 
shorten  the  period  of  time  within  which  claims  shall  be 
barred  by  the  statute  of  limitations.  It  may,  if  it  think 
proper,  direct  that  the  necessary  implements  of  agricul- 
ture, or  the  tools  of  the  mechanic,  or  articles  of  necessity 
in  household  furniture,  shall,  like  wearing  apparel,  not  be 
liable  to  execution  on  judgments.  Regulations  of  this  de- 
scription have  always  been  considered,  in  every  civilized 
community,  as  properly  belonging  to  the  remedy,  to  be 
exercised  or  not  by  every  sovereignty,  according  to  its  own 
views  of  policy  and  humanity.  It  must  reside  in  every 
state  to  enable  it  to  secure  its  citizens  from  unjust  and 
harassing  litigation,  and  to  protect  them  in  those  pursuits 
which  are  necessary  to  the  existence  or  well  being  of  every 
community.  And  although  a  new  remedy  may  be  deemed 
less  convenient  than  the  old  one,  and  may  in  some  degree 
render  the  recovery  of  debts  more  tardy  and  difficult,  yet 
it  will  not  follow  that  the  law  is  unconstitutional.  What- 
ever belongs  merely  to  the  remedy,  may  be  altered  accord- 
ing to  the  will  of  the  state,  provided  the  alteration  does  not 
impair  the  obligation  of  the  contract.  But  if  that  effect 
is  produced,  it  is  immaterial  whether  it  is  done  by  acting 
on  the  remedy,  or  directly  on  the  contract  itself.  In  either 
•case  it  is  prohibited  by  the  constitution." 


61  Von  Baumbach  v.  Bade,  et  aL 

In  accordance  with  the  principles  here  laid  down,  it 
has  been  held  that  the  legislature  may  enact  a  statute  of 
limitation,  by  which  the  remedy  upon  existing  contracts, 
if  not  prosecuted  within  a  specified  time,  may  be  entirely 
defeated  or  cut  off;  that  laws  relieving  debtors  from  im- 
prisonment for  debts  previously  contracted,  and  recording 
acts  by  which  the  older  grant  of  real  estate,  otherwise 
valid,  is  postponed  and  rendered  inoperative  and  void,  as 
to  the  younger,  if  the  prior  conveyance  is  not  recorded 
within  a  limited  time,  are  constitutional  and  valid.  Other 
laws  of  a  similar  nature  might  be  named. 

The  result  of  the  cases  seems  to  be  that  the  legislature 
may  alter  or  vary  existing  remedies  as  it  pleases,  provided 
that  in  so  doing  their  nature  and  extent  is  not  so  changed 
as  materially  to  impair  the  rights  and  interests  of  the  cred- 
itors. Practically  this  rule  may  seem  vague  and  unsatis- 
factory, but  it  is  the  most  certain  general  one  of  which  the 
nature  of  the  subject  admits.  The  difficulty  of  applying 
its  doctrines  to  particular  cases,  and  of  distinguishing  be- 
tween what  are  legitimate  changes  of  the  remedy,  and 
those  changes  which,  in  the  form  of  remedy,  impair  the 
right,  has  often  suggested  itself  to  the  mind  of  courts  when 
dealing  with  it.  No  such  difficulty  is  experienced  with 
regard  to  that  kind  of  legislation  by  which  the  legislature, 
by  attempting  to  change  the  terms  or  conditions  of  the 
contract  itself,  would  relieve  the  parties  from  the  perform- 
ance of  something  which  they  had  agreed  to  do,  or  compel 
them  to  do  something  which  their  contract  did  not  require. 
So  far,  then,  as  the  constitution  of  the  United  States 
reaches  or  affects  alterations  of  the  remedy,  such  altera- 
tions are,  first,  matters  of  sound  discretion  with  the  legis- 
lature, and,  secondly,  with  the  courts.  The  legislature 
having  power  within  the  limits  above  stated,  to  control, 


Opinions  of  Chief  Justice  Dixon.  62 

at  their  pleasure,  the  remedy,  are,  in  the  first  instance,  to 
determine  for  themselves  whether  any  change  or  modifica- 
tion of  remedy  is  necessary,  and  if  so,  what  change,  and 
whether  parties  to  contracts  are  left  with  a  substantial 
remedy,  according  to  the  laws  as  they  existed  before  such 
change,  subject  to  a  revision  in  the  last  particular  by  the 
courts. 

In  disposing  of  such  a  question,  the  greatest  safety  is  in 
keeping  strictly  within  the  line  of  established  precedents ; 
and  yet,  as  remedies  are  liable  to  be,  and  are  varied  in  such 
a  great  variety  of  ways,  but  little  light  can  be  expected 
from  former  decisions. 

In  the  case  of  Bronson  v.  Kinzie,  laws  of  the  state  of 
Illinois,  passed  subsequently  to  the  execution  of  a  mort- 
gage, which  declared  that  the  equitable  estate  of  a  mort- 
gagor should  not  be  extinguished  for  twelve  months  after 
a  sale,  under  a  decree  in  chancery,  and  which  prevented 
any  sale  unless  two-thirds  of  the  amount  at  which  the 
property  had  been  valued  by  appraisers,  should  be  bid 
therefor,  were  held  to  be  unconstitutional  and  void.  While 
the  judgment  obtained  in  a  civil  action  may,  for  some 
purposes,  be  considered  a  part  of  the  remedy,  it  is  not  so 
for  all ;  and  the  court  say  that  the  law  did  not  act  on  the 
remedy  merely,  but  upon  the  contract  itself,  by  engrafting 
upon  it  new  conditions,  unjust  and  injurious  to  the  mort- 
gagee ;  that  it  declared,  after  the  mortgaged  premises  were 
sold  under  the  decree  of  a  court  of  chancery,  the  purpose 
and  object  of  which,  according  to  the  laws  as  they  stood  at 
the  time  the  mortgage  was  executed,  was  to  cut  off  the 
equity  of  redemption  of  the  mortgagor,  and  those  claiming 
under  him,  subsequent  to  the  mortgage,  that  the  equitable 
rights  of  the  mortgagor  and  judgment  creditors  should 
not  be  extinguished,  but  should  continue  as  to  the  mort- 


63  Von  Baumbach  v.  Bade,  et  al. 

gagor  twelve,  and  as  to  creditors,  fifteen  months  after  the 
sale;  that  it  created  in,  and  gave  to  the  mortgagor  and 
creditors,  new  estates,  which,  before  its  passage  had  no  ex- 
istence. 

As  to  the  prohibition  to  sell,  unless  two-thirds  of  the 
value  of  the  mortgaged  premises,  as  fixed  by  appraisers, 
was  bid,  they  say  that  though  it  acts  apparently  upon  the 
remedy,  and  not  directly  upon  the  contract,  yet  its  effect 
was  to  deprive  the  party  of  his  pre-existing  right  to  fore- 
close the  mortgage  by  a  sale  of  the  premises,  and  to  im- 
pose upon  him  conditions  which  would  frequently  render 
any  sale  altogether  impossible.  The  superadded  condition 
that  no  sale  should  be  made  unless  the  sum  specified  was 
bid,  was  a  denial  altogether  of  the  right  to  sell  on  cases 
where  bids  to  that  amount  could  not  be  obtained,  and  thus 
the  obligation  of  the  contract  which  could  only  be  enforced 
by  a  sale  of  the  premises,  might  be  done  away  with  and 
destroyed  entirely. 

The  case  of  McCracken  v.  Hayward,  arose  under  the 
same  statute  laws  of  Illinois,  and  involved  the  same  ques- 
tion last  mentioned,  except  that  it  arose  upon  the  sale  of 
real  estate  upon  an  execution  at  law ;  the  provisions  of  the 
statute  as  to  valuation  and  bidding,  having  been  applied 
as  well  to  sales  of  real  estate  on  execution,  as  to  sales  un- 
der decrees  in  chancery.  The  court  arrives  at  the  same 
conclusion  in  this,  as  in  the  former  case,  and  by  a  like 
process  of  reasoning. 

In  the  late  case  of  Curran  v .  State  of  Arkansas,  15  How. 
304,  the  doctrine  that  the  remedy  forms,  in  part,  the  ob- 
ligation of  the  contract,  is  distinctly  repeated  and  reaf- 
firmed. Mr.  Justice  Curtis,  in  delivering  the  opinion  of 
the  court  says:  "But  it  by  no  means  follows,  because  a 
law  affects  only  the  remedy,  that  it  does  not  impair  the 


Opinions  of  Chief  Justice  Dixon.  64 

obligation  of  the  contract.  The  obligation  of  a  contract, 
in  the  sense  in  which  those  words  are  used  in  the  consti- 
tution, is  that  duty  of  performing  it,  which  is  recognized 
and  enforced  by  the  laws.  And  if  the  law  is  so  changed 
that  the  means  of  enforcing  this  duty  are  materially  im- 
paired, the  obligation  of  the  contract  no  longer  remains  the 
same." 

In  this  case  it  was  held  that  several  acts  of  the  legisla- 
ture of  the  state  of  Arkansas,  by  which  they  withdrew 
from  the  Bank  of  the  State  of  Arkansas,  of  which  the  state 
was  sole  stockholder,  and  which  had  become  insolvent,  all 
its  assets,  both  real  and  personal,  and  appropriated  them 
to  the  use  of  the  state,  were,  as  against  the  creditors  of 
this  bank,  unconstitutional  and  void,  for  the  reason  that 
they  entirely  defeated  the  remedy,  by  leaving  nothing  out 
of  which  the  debts  could  be  satisfied.  The  learned  judge, 
after  adverting  to  the  case  of  McCracken  v.  Hayward, 
says:  "The  law  now  in  question  certainly  presents  a  far 
more  serious  obstruction,  for  it  withdraws  the  real  prop- 
erty of  the  bank  altogether  from  the  reach  of  legal  process, 
provides  no  substituted  remedy,  and  leaves  the  creditor,  as 
was  truly  said  by  the  supreme  court  of  Arkansas,  in  its 
opinion  in  this  case,  'in  the  condition  in  which  his  rights 
live  but  in  grace,  and  his  remedies  in  entreaty  only.' ' 

These  are  all  the  decisions  of  the  supreme  court  of  the 
United  States  which  have  any  direct  bearing  upon  the 
question  now  before  us.  Does  it  fall  within  either,  or 
the  principles  laid  down  in  them  ?  I  think  not.  It  seems 
to  me  that,  giving  them  all  the  force  of  authority,  the  legis- 
lation here  complained  of  must  be  sustained.  By  it  the 
remedy  of  the  mortgagee,  as  it  previously  existed,  is  in  all 
its  parts  substantially  continued.  No  new  conditions  are 
engrafted.  The  form  and  mode  of  proceeding  in  his  ac- 


65  Von  Baumbach  v.  Bade,  et  al. 

tion,  the  nature  and  extent  of  his  judgment,  and  of  his 
right  under  it  remain  the  very  same.  It  can  be  carried 
into  as  full  and  complete  execution  as  at  any  former 
period.  No  clogs  or  impediments  are  thrown  in  the  way, 
either  of  obtaining  or  finally  executing  the  judgment, 
except  in  the  matter  of  the  time  which  is  required  for 
those  purposes. 

Is  the  time  required  by  law  for  its  accomplishment,  so 
much  of  the  essence  of  every  legal  remedy,  that  it  cannot 
be  changed  or  extended  by  the  legislature?  If  so,  then 
the  legislature  is  shorn  of  a  large  share  of  its  power  to  reg- 
ulate and  control  remedies.  And  if  so,  then,  I  do  not  see 
how  "a  state  may  regulate  at  pleasure  the  modes  of  pro- 
ceeding in  its  courts  in  relation  to  past  contracts  as  well 
as  future."  The  power  to  limit  or  extend  the  time  for 
answering,  or  within  which  any  other  step  in  an  action 
shall  be  taken,  is,  and  must  be  conceded.  It  has  been 
oftener  exercised  and  less  questioned  than  any  branch  of 
legislative  power  touching  remedies.  The  only  limit  or 
qualification  to  its  exercise  is,  that  the  legislature  shall 
confine  their  action  within  the  bounds  of  reason  and  jus- 
tice, and  that  they  shall  not  so  prolong  the  time  within 
which  legal  proceedings  are  to  be  had,  as  to  render  them 
futile  and  useless  in  the  hands  of  the  creditor,  or  seriously 
impair  his  rights  or  securities.  Within  these  limits  the 
legislature  may  safely  exercise  this  power  in  such  manner 
as  they  may  deem  most  beneficial  to  the  policy  and  inter- 
nal economy  of  the  state,  and  the  interests  of  all  its  citi- 
zens. 

Although  such  changes  are,  in  general,  exceedingly  un- 
wise and  unjust,  yet  if  from  sudden  and  unlocked  for  re- 
verses or  misfortune,  or  any  other  cause  the  existing  reme- 
dies become  so  stringent  in  all  or  a  particular  class  of  ao 
5 


Opinions  of  Chief  Justice  Dixon.  66 

tions,  that  great  and  extensive  sacrifices  of  property  will 
ensue,  without  benefit  to  the  creditor,  or  relief  to  the 
debtor,  a  relaxation  of  the  remedies  becomes  a  positive 
duty  which  the  state  owes  to  its  citizens.  The  general 
welfare  of  the  community  is  committed  to  its  care  and 
keeping,  and  on  fundamental  principles  of  justice,  it  is 
bound  by  reasonable  regulations  to  promote  and  protect  it. 
In  passing  upon  questions  like  the  present,  courts  must 
look  behind  the  statute  itself,  and  take  notice  of  the  causes 
which  led  to  its  enactment,  for  otherwise  they  would  be  un- 
able to  determine  whether  its  regulations  are  reasonable 
or  not,  or  were  demanded  by  the  state  of  the  times  or  the 
financial  situation  of  the  country.  By  so  doing  in  the 
present  instance,  I  think  it  can  be  clearly  demonstrated 
that  the  passage  of  the  laws  before  us,  was  an  exercise  of 
sound  discretion  on  the  part  of  the  legislature.  But  in- 
dependently of  these,  or  like  considerations,  and  compar- 
ing the  remedy  as  it  existed  before  the  passage  of  the  law, 
with  it  as  it  was  afterwards,  I  cannot  say  that  the  delay 
occasioned  by  it  is  so  great,  or  so  unreasonable,  or  that  it  so 
obstructs  or  embarrasses  proceedings  for  foreclosure  on 
the  part  of  the  mortgagees,  as  to  make  it,  under  any  cir- 
cumstances, unconstitutional  and  void.  A  complete  and 
substantial  remedy  was  left  them,  according  to  the  course 
of  justice,  as  it  was  administered  before  its  passage,  the 
only  difference  being  that  it  was  less  expeditious,  but  not 
so  much  so  as  materially  to  affect  or  diminish  their  rights. 
All  must  admit,  I  think,  that  its  unconstitutionality  is 
doubtful,  and  in  such  cases  it  is  a  well  settled  rule  of 
courts  to  resolve  doubts  in  favor  of  the  laws. 

I  am  of  opinion,  therefore,  that  the  judgment  of  the 
circuit  court  should  be  reversed,  and  the  cause  remanded 
for  further  proceedings. 


67  Note  to  Von  Baumbach  v.  Bade,  et  al. 

NOTE. 

The  proposition  that  the  remedy  provided  by  law  for  en- 
forcing a  contract  enters  into  and  forms  a  part  of  the  ob- 
ligation of  the  contract,  which  this  case  correctly  assumes 
to  be  the  settled  law  (Ogden  v.  Saunders,  12  Wheaton  213  ; 
Bronson  v.  Kinzie,  1  How.  311),  conducted  the  court  to 
the  perplexing  inquiry,  why,  if  such  was  the  law,  any  im- 
pairment or  indeed  any  change  in  the  remedy  did  not 
amount  to  impairing  the  obligation  of  the  contract  within 
the  prohibition  of  the  Federal  Constitution.  It  is  this 
question  which  Chief  Justice  Dixon  answered  in  his  opin- 
ion in  Von  Baumbach  v.  Bade,  supra.  This  case  has  sub- 
sequently been  cited  with  approval  by  the  Wisconsin  Court 
as  follows:  Ogden  v.  Glidden,  9  Wis.  140;  Starkweather 
v.  Hawes,  10  Wis.  125;  Robinson  v.  Howe,  13  Wis.  344; 
Oatman  v.  Bond,  15  Wis.  22;  Knox  v.  Hundhausen,  23 
Wis.  511 ;  Knox  v.  Hundhausen,  24  Wis.  198 ;  Baker  v. 
Supervisors  of  Columbia  County,  39  Wis.  448 ;  ISTorth- 
western  Mut.  Life  Ins.  Co.  v.  beeves,  46  Wis.  149 ;  Plum 
and  another  v.  City  of  Fond  du  Lac,  51  Wis.  396;  Guia- 
nella  v.  Bigelow,  96  Wis.  198;  Savings  Bank  v.  Schrank, 
100  Wis.  480 ;  P.  L.  &  C.  Works  v.  U.  O.  &  Co.,  100  Wis. 
496;  Blonde  v.  Lumber  Co.,  106  Wis.  542;  Oshkosh 
Water  Works  Co.  v.  City,  109  Wis.  213. 

It  has  been  commented  on  disapprovingly  in  Phinney 
v.  Phinney,  81  Me.  465.  It  has,  however,  been  cited  with 
approval  outside  of  the  Wisconsin  Supreme  Court  as  fol- 
lows: Jones  v.  Davis,  6  K"eb.  37;  Brown  v.  McPeak,  31 
Keb.  143  ;  Ahern  v.  Walsh,  31  Neb.  477  ;  Lincoln  v.  Grant, 
38  Xeb.  374;  Taylor  v.  Stearns,  18  Gratt  250,  288;  Law- 
son  v.  Jeffries,  47  Miss.  406;  Pereles  v.  City  of  Water- 
town,  6  Biss.  84;  Oskosh  Water  Works  Co.  v.  City,  187 
TJ.  S.  437. 

It  has  also  been  cited  in  the  notes  to  the  following  cases 
reported  in  Am.  Dec. ;  Am.  St.  Rep. ;  and  Am.  &  Eng.  Ry. 
Cas.  as  follows : 

American  Decisions:  Halloway  v.  Sherman  (12  la. 
288),  79  Am.  Dec.  538;  Scobey  v.  Gibson  (17  Ind.  572), 
79  Am.  Dec.  494;  Meighen  v.  Strong  (6  Miss.  177),  80 


Opinions  of  Chief  Justice  Dixon.  68 

Am.  Dec.  445;  Morse  v.  Goold  (11  K  Y.  282),  62  Am. 
Dec.  112;  Cook  v.  Gray  (2  Houston,  445),  81  Am.  Dec. 
193;  Blann  v.  State  (39  Ala.  353),  84  Am.  Dec.)  790; 
Penrose  v.  Erie  Canal  Co.  (56  Pa.  St.  46),  93  Am.  Dec. 
782;  Coffinan  v.  Bank  of  Ky.  (40  Miss.  29),  90  Am. 
Dec.  320;  Goshen  v.  Stonington  (4  Conn.  209),  10  Am. 
Dec.  137. 

American  State  Reports:  Phinney  v.  Phinney  (81  Me. 
450),  10  Am.  St.  Rep.  175. 

American  &  English  Railway  Cases:  Chattaroi  Ry.  v. 
Kinner  (81  Ky.  221),  14  Am.  &  Eng.  Ry.  Gas.  33. 

Valuable  notes  will  be  found  upon  this  subject  in  the 
following  volumes  of  the  L.  R.  A. :  1  L.  R.  A.  356;  4  L. 
R  A.  348 ;  17  L.  R.  A.  611 ;  42  L.  R.  A.  341. 


69  Ableman  v.  Booth. 


Ableman  v.  Booth. 

June  Term,  1859 
(11  Wis.  498.) 

The  primary  question  of  law  discussed  in  the  opinion 
of  Chief  Justice  Dixon  in  the  above  case  is  thus  stated  by 
him: 

Whether  section  2,  article  3,  of  the  constitution  of  the 
United  States  confers  upon  congress  the  power  to 
provide  by  law  for  an  appeal  from  the  courts  of  the 
several  states  to  the  supreme  court  of  the  United 
States,  and  to  authorize  that  court  in  the  exercise  of 
its  appellate  jurisdiction  to  review  and  reverse  the 
judgments  of  the  state  courts  in  the  cases  specified 
in  the  25th  section  of  the  judiciary  act,  approved 
September  24,  1789. 

The  following  opinion  of  Chief  Justice  Dixon  is  the  last 
filed  in  the  Wisconsin  Supreme  Court  in  the  cases  arising 
out  of  the  celebrated  "Glover  Rescue."  Booth  was 
charged  on  the  llth  day  of  March,  1854,  with  having 
aided  and  abetted  at  Milwaukee,  Wis.,  the  escape  of  a 
fugitive  slave  from  a  Deputy  United  States  Marshal,  who 
had  the  slave  in  custody.  Upon  the  examination  of  Booth 
before  a  United  States  Commissioner,  it  was  found  that 
there  was  probable  cause  to  believe  Booth  guilty  of  assist- 
ing in  the  escape  of  the  fugitive  slave,  and  Booth  was  held 
for  trial  before  the  District  Court  of  the  United  States  for 
the  District  of  Wisconsin,  and,  having  failed  to  give  bail 
for  his  appearance  before  the  court,  he  was  committed  by 


Opinions  of  Chief  Justice  Dixon.  70 

the  Commissioner  to  the  custody  of  the  Marshal.  Booth 
made  application  to  one  of  the  Justices  of  the  Supreme 
Court  of  the  State  of  Wisconsin  for  a  writ  of  habeas  cor- 
pus. The  writ  was  granted,  Booth  was  discharged  and 
the  act  of  the  Justice,  in  discharging  Booth,  was  there- 
after affirmed  by  the  Supreme  Court  of  the  State.  There- 
after Booth  was  again  arrested  on  a  warrant  issued  by  the 
United  States  District  Judge  for  the  District  of  Wiscon- 
sin, indicted  by  the  Federal  Grand  Jury  and  tried  and 
convicted  and  sentenced  to  imprisonment  for  assisting  in 
the  rescue  and  escape  of  the  fugitive  slave. 

From  this  imprisonment  he  was  again  discharged  on  a 
writ  of  habeas  corpus  by  the  Supreme  Court  of  the  State 
of  Wisconsin.  The  action  of  the  Supreme  Court  of  the 
State  of  Wisconsin  in  both  instances  in  thus  discharging 
Booth  was  reviewed  and  reversed  by  the  Supreme  Court 
of  the  United  States,'  and  the  record  in  both  cases  con- 
taining the  mandates  of  the  Supreme  Court  of  the  United 
States  were  remitted  to  the  Supreme  Court  of  the  State 
of  Wisconsin.  It  was  upon  the  motion  made  for  leave 
to  file  with  the  clerk  of  the  Supreme  Court  of  Wisconsin 
the  said  mandates  of  the  Supreme  Court  of  the  United 
States  that  the  opinion  of  Chief  Justice  Dixon,  herein- 
after quoted,  was  delivered. 

The  Supreme  Court  of  the  State,  at  the  time  the  motions 
were  made  to  receive  said  mandates  of  the  supreme  court 
of  the  United  States,  was  composed  of  Dixon,  Chief  Jus- 
tice, and  of  Associate  Justices  Cole  and  Paine.  Mr.  Jus- 
tice Cole  had  been  a  member  of  the  court  at  the  time  the 
writs  of  habeas  corpus  were  granted  discharging  Booth, 
and  adhered  to  the  views  of  the  court,  then  expressed,  that 
the  Fugitive  Slave  Law  was  unconstitutional,  and  voted 
against  receiving  the  mandates  of  the  Supreme  Court  of 


71  Ableman  v.  Booth. 

the  United  States.  Mr.  Justice  Paine  had  been  counsel 
for  Booth  and  so  took  no  part  in  the  decision.  The  Chief 
Justice  voted  for  receiving  the  mandates,  but  the  court  be- 
ing thus  equally  divided  the  motions  to  receive  and  file 
them  were  denied  by  an  order  made  in  open  court,  but  no 
opinion  was  filed  by  Mr.  Justice  Cole.  The  opinion  of 
the  Chief  Justice  was  filed  on  the  14th  of  December,  1859, 
when  the  order  was  made  denying  the  motions. 

The  note  at  the  end  of  the  opinion  herein  cites  the  cases 
in  the  Supreme  Court  of  Wisconsin,  as  well  as  those  in 
the  United  States  Courts  involved  in  this  litigation. 


N,  Chief  Justice.  On  the  22d  day  of  September 
last,  and  during  the  present  term  of  this  court,  the  United 
States  district  attorney  for  the  district  of  Wisconsin, 
D.  A.  J.  Upham,  Esq.,  in  behalf  of  the  attorney  general 
of  the  United  States,  appeared  before  this  court,  and  by 
motions,  entitled  in  these  cases,  asked  leave  to  file  with 
the  clerk  two  mandates  or  remittiturs,  one  in  each  of  the 
cases,  from  the  supreme  court  of  the  United  States.  The 
motions  were  reduced  to  writing,  filed  with  the  clerk,  and 
the  attention  of  the  court  called  to  them  by  the  district  at- 
torney, but  no  argument  whatever  was  made.  The  man- 
dates were  also  left  with  the  clerk  to  be  disposed  of  as  the 
court  should  direct  upon  a  final  determination  of  the  mo- 
tions. The  former  is  the  title  of  a  suit  in  error,  in  the 
supreme  court  of  the  United  States,  in  which  that  court 
reviewed  and  reversed  a  judgment  of  this  court  rendered 
at  the  June  term,  1854,  in  a  proceeding  entitled  "In  the 
matter  of  the  petition  of  Sherman  M.  Booth  for  a  writ 
of  habeas  corpus,  and  to  be  discharged  from  imprison- 
ment," the  facts  in  which,  together  with  the  several  opin- 
ions of  the  justices  of  this  court  ,  will  be  found  reported 


Opinions  of  Chief  Justice  Dixon.  72 

in  the  third  volume  of  Wisconsin  Reports,  pages  1  to  144 
inclusive.  The  latter  is  the  title  of  a  like  suit  in  the  su- 
preme court  of  the  United  States,  in  which  the  decision 
of  this  court,  made  at  the  December  term,  1854,  in  a  pro- 
ceeding similarly  entitled,  and  reported  in  the  third  vol- 
ume of  Wisconsin  Reports,  pages  157  to  218,  was  in  like 
manner  reviewed  and  reversed.  The  judgments  and  opin- 
ion of  the  supreme  court  of  the  United  States  will  be 
found  reported  at  length  in  Howard's  S.  C.  R.,  vol.  21, 
page  506.  The  mandates  are  in  the  usual  form,  requir- 
ing the  causes  to  be  remanded  to  this  court  to  be  further 
proceeded  with,  in  accordance  with  the  opinion  there 
given.  No  statement  of  facts  is  required  beyond  what 
will  be  found  in  the  reported  cases,  except  that  I  deem  it 
advisable  to  state  the  proceedings  had  in  this  court  on  the 
receipt  of  the  writs  of  error. 

In  the  first  case,  the  writ  of  error  was  served  on  the 
clerk  of  this  court  on  the  30th  of  October,  1854.  On  the 
6th  of  November  following,  it  was  duly  allowed  by  the 
late  chief  justice  of  this  court,  now  no  more,  and  a  return 
made  to  it  by  the  clerk,  under  his  direction  and  supervi- 
sion. The  service  of  the  writ  in  the  last  case  was  made 
about  the  1st  of  June,  1855.  On  the  26th  day  of  March, 
previous,  the  clerk  had  made  and  delivered  to  the  United 
States  district  attorney,  at  his  request,  a  properly  certi- 
fied copy  of  the  record.  On  receipt  of  the  writ,  the  at- 
tention of  the  court  was  called  to  it  by  the  clerk,  when  he 
was  advised  to  make  no  return  until  specially  advised  so 
to  do.  He  was  afterward  directed  to  make  no  return. 
The  matter  remained  in  this  situation  until  the  January 
term,  1857,  when  at  his  request,  it  was  deemed  proper  by 
the  court  that  an  order,  embodying  the  instructions  which 
had  been  previously  given,  and  which  were  merely  verbal, 


73  Ableman  v.  Booth. 

should  be  made  and  formally  entered  of  record.  Such 
order  was,  accordingly,  on  the  5th  day  of  February,  1857, 
made,  signed  by  the  chief  justice  and  entered  of  record, 
by  which  the  court,  after  reciting  and  confirming  the  pre- 
vious verbal  instructions,  directed  the  clerk  to  make  no  re- 
turn. It  may  not,  perhaps,  be  improper  for  me  further 
to  remark  here,  that  in  addition  to  what  is  already  ap- 
parent from  the  above  statement  of  facts,  it  is  further  evi- 
dent from  the  opinion  of  the  late  chief  justice  in  the  case 
first  above  cited,  3  Wis.  Rep.,  pp.  63  and  64,  that  at  and 
before  the  time  of  the  service  and  return  of  the  first  writ 
of  error,  he  entertained  no  doubt  of  the  appellate  juris- 
diction of  the  supreme  court  of  the  United  States.  After 
commenting  upon  the  decisions  which  had  before  that  time 
been  made  by  that  court  as  to  the  power  of  congress  to 
legislate  on  the  subject  of  the  surrender  of  fugitives  from 
labor,  and  showing  that  the  point  which  he  was  then  con- 
sidering had  not  been  passed  upon  in  those  decisions,  he 
says:  "We  are  of  the  opinion,  therefore,  that  whatever 
may  be  the  duty  of  this  court  in  relation  to  the  question 
of  the  power  of  congress  to  provide  by  law  for  the  sur- 
render of  fugitives  from  labor  to  the  persons  to  whom 
their  labor  is  due,  we  are  not  at  liberty  to  consider  the 
question  of  the  right  of  a  person  claimed  as  a  fugitive  to 
a  trial  by  jury,  before  he  can  be  surrendered  or  delivered 
up  to  the  claimant,  as  already  settled  by  the  couri,  which, 
has  the  power  finally  to  decide  all  questions  growing  out 
of  an  alleged  violation  of  the  constitution  of  the  United 
States  by  an  act  of  congress.  We  must  consider  the  ques- 
tion as  an  open  one." 

The  only  question  that  is  or  can  be  made  on  the  entering 
and  conforming  to  these  mandates  is:  Does  the  constitu- 
tion of  the  United  States  confer  on  congress  the  power  to 


Opinions  of  Chief  Justice  Dixon.  74 

provide  by  law  for  an  appeal  from  the  courts  of  the  several 
states  to  the  supreme  court  of  the  United  States,  and  to 
authorize  that  court  in  the  exercise  of  its  appellate  juris- 
diction, to  review  and  reverse  the  judgments  of  the  state 
courts  in  the  cases  specified  in  the  25th  section  of  the  ju- 
diciary act  approved  the  24-th  of  September,  1789? 

The  proper  solution  of  this  question  always  vastly  and 
almost  immeasurably  important  on  account  of  the  conse- 
quences involved,  was  never  perhaps  since  the  commence- 
ment of  our  national  career  more  vitally  so  than  at  the 
present  time.  ]STo  question  in  an  equal  degree  challenges 
the  earnest  and  candid  attention  of  the  citizen.  Certainly 
none  could  be  presented  for  our  determination  which 
would  demand  more  rigid  investigation  or  more  candid 
and  solemn  consideration.  To  the  best  of  my  limited 
ability,  I  have  endeavored  to  give  it  both.  In  doing  so 
I  have  been  not  a  little  embarrassed  by  the  want  of  those 
arguments  of  experienced  and  learned  counsel  by  which 
courts  are  usually  so  much  enlightened  and  aided  in  the 
investigation  of  important  questions. 

Holding,  as  I  feel  compelled  to,  that  the  affirmative  of 
this  proposition  is  correct,  my  own  embarrassments  and 
its  importance  to  me  have  been  much  increased,  from 
what  appears  to  have  been  the  contrary  decision  of  this 
court,  as  lately  composed,  by  the  refusal  to  make  return 
to  the  second  writ  of  error,  and  from  the  fact  that  my 
brethren  entertain  an  entirely  opposite  opinion.  These 
circumstances  have  imposed  upon  me  increased  care  and 
watchfulness,  and  have  led  me  the  more  anxiously  and 
vigilantly  to  examine  the  ground  on  which  I  stand,  lest  I 
may  be  in  error.  Fortunately  for  me  the  field  of  inquiry 
and  argument  is  not  a  new  one.  It  is  as  old  as  the  con- 
stitution itself,  and  had  been  traversed  in  its  entire  length 


7-3  Ableman  v.  Booth. 

and  breadth,  and  occupied  in  every  available  point,  by  the 
ablest  and  most  distinguished  jurists  and  statesmen  of 
our  country,  long  before  many  of  the  present  generation 
came  upon  the  stage  of  active  life.  This  ordinarily  would 
relieve  me,  if  indeed  I  were  competent  for  so  great  a  task, 
from  going  over  any  part  of  it  here,  and  would  leave  little 
to  be  said  except  on  which  side  I  am.  In  justice  to  my- 
self I  will  say  that  since  the  making  of  these  motions,  I 
have  been  over  it  again  and  again,  and  that  to  the  utmost 
of  my  ability,  and  with  a  solicitude  becoming  the  position 
I  occupy,  and  which  I  never  before  experienced,  I  have 
studied  and  considered  every  argument,  for  and  against, 
within  my  reach.  My  sole  purpose  has  been  to  be  right — 
to  assume  such  a  position  as  under  the  constitution  will 
abide  the  test  of  reason  and  patriotism.  If  I  have  failed, 
it  is  an  error  of  the  intellect  to  which  all  men  are  liable. 

Under  different  circumstances,  I  would  not,  at  the  risk 
of  repeating  what  has  often  been  said  before,  venture  to 
assign  a  reason  for  the  conclusions  to  which  I  have  ar- 
rived, but  would  content  myself  with  simply  referring 'the 
reader  to  those  authorities  and  works  where  the  whole 
question  will  be  found  fully  discussed.  But  since,  in 
view  of  what  appears  to  have  been  the  former  solemn  ac- 
tion of  this  court,  we  have  arrived  at  a  point  in  our  system 
of  double  allegiance,  where  "fidelity  to  the  state  is  treason 
to  the  United  States,  and  treason  to  her,  fidelity  to  them," 
I  trust  I  shall  be  excused  for  stating,  briefly  as  I  can, 
some  of  the  positions  taken  by  those  who  assert  the  appel- 
late jurisdiction,  which  appear  to  me  to  be  unanswerable, 
and  which  in  my  humble  judgment  never  have  been,  and 
never  can  be  shaken  by  those  who  oppose  it. 

Before  proceeding  to  state  these  views,  I  wish  to  say 
that  in  disposing  of  this  question,  I  have  endeavored  to 


Opinions  of  Chief  Justice  Dixon.  76 

decide  it  on  the  constitution  itself  fairly  and  legitimately 
interpreted,  well  remembering  "that  'a  frequent  recurrence 
to  fundamental  principles/  is  the  only  means  of  sustaining 
the  government  in  its  original  purity,  and  of  preserving 
the  original  landmarks  established  by  its  framers,"  and 
believing  that  those  "fundamental  principles"  are  to  be 
found  in  that  instrument  and  not  elsewhere ;  and  believing, 
furthermore,  that  if  there  are  evils  fairly  to  be  appre- 
hended from  its  settlement  either  way,  they  are  such  as  are 
necessarily  incident  to  every  form  of  human  government, 
and  that  they  are  not  to  be  remedied  by  any  judicial  pow- 
ers of  construction  which  would  give  to  the  government 
an  authority  which  it  does  not  possess,  or  take  from  it  any 
which  is  conferred  by  the  constitution ;  and  that  the  reme- 
dies lie  in  the  hands  of  the  people  who  created  it,  and  who 
can  apply  them  or  not,  as  experience  and  wisdom  shall  dic- 
tate. I  have  not,  therefore,  on  the  one  hand,  pictured  be- 
fore my  mind  a  gloomy  congregation  of  states  "disrobed" 
of  their  sovereignty,  and  prostrated  at  the  feet  of  the  gen- 
eral government,  by  means  of  federal  usurpation  and  as- 
sumption, nor,  on  the  other,  the  weakened  and  powerless 
republic,  begging  at  the  hands  of  the  mighty  rulers  of 
the  states,  the  privileges  of  executing  her  laws  within  their 
borders.  I  have  not  placed  on  one  side  of  me  the  horrors 
of  "consolidation"  and  "despotism,"  and  on  the  other  those 
of  "dissolution"  and  "anarchy,"  and  endeavored  to  make 
choice  between  them.  Neither  have  I  attempted  nicely  to 
adjust  and  balance  the  centripetal  and  centrifugal  forces 
of  our  government.  These,  though  very  proper  to  be  con- 
sidered in  connection  with  such  a  question,  are  not  the 
considerations  which  should  control  and  govern  the  judicial 
mind.  Its  action  is  to  be  determined  by  the  plain  letter 
and  spirit  of  the  constitutiton,  leaving  the  adjustment  of 


77  Ableman  v.  Booth. 

such  matters  to  the  people  who  made,  and  who  can  unmake 
or  amend  it.  The  judiciary  are  not  responsible  for  the 
consequences  which  flow  from  a  proper  construction  of 
that  instrument.  While  I  have  a  high  regard  for  those 
illustrious  judges  and  statesmen  whose  opinions  I  adopt, 
I  trust  it  does  not  diminish  my  respect  for  those  equally 
illustrious,  who  differ  from  them  in  opinion.  I  have  not 
yielded  my  assent  to  the  doctrines  of  the  federal  courts 
through  any  mean  spirit  of  "dignified  judicial  subordina- 
tion," nor  as  "hoary  usurpations  of  power  and  jurisdiction, 
or  time-honored  encroachments  on  the  reserved  rights  of 
the  sovereign  states,"  rendered  sacred  by  "their  antiquity," 
but  because  I  believe  those  doctrines  to  be  right.  Neither 
policy,  expediency,  "uniformity,"  the  peculiar  character- 
istics of  the  controversy  before  me,  nor  vague  speculations 
upon  possible  events  or  contingencies  which  may  never 
happen  are  the  foundations  upon  which  I  would  frame  a 
legal  conclusion  upon  a  constitutional  question.  With 
these  remarks  I  will  state  the  view  of  the  constitution 
which,  for  the  most  part,  leads  me  to  the  conclusion  to 
which  I  have  arrived. 

The  25th  section  of  the  judiciary  act  above  referred  to 
provides  "that  a  final  judgment  or  decree  in  a  suit  in  the 
highest  court  of  law  or  equity  in  a  state  in  which  a  de- 
cision in  the  suit  could  be  had,  where  is  drawn  in  question 
the  validity  of  a  treaty  or  statute  of,  or  an  authority  ex- 
ercised under  the  United  States,  and  the  decision  is  against 
the  validity ;  or  where  is  drawn  in  question  the  validity  of 
a  statute  of,  or  an  authority  exercised  under  any  state,  on 
the  ground  of  their  being  repugnant  to  the  constitution, 
treaties,  or  laws  of  the  United  States,  and  the  decision  is 
in  favor  of  such,  their  validity;  or  where  is  drawn  in 
question  the  construction  of  any  clause  of  the  constitution, 


Opinions  of  Chief  Justice  Dixon.  78 

or  of  a  treaty,  or  statute  of,  or  commission  held  under  the 
United  States,  and  the  decision  is  against  the  title,  right, 
privilege  or  exemption  specially  set  up  or  claimed  by 
either  party  under  such  clause  of  the  said  constitution, 
treaty,  statute  or  commission,  may  be  re-examined  and  re- 
versed or  affirmed  in  the  supreme  court  of  the  United 
States  upon  a  writ  of  error,  etc.,"  and  that  "no  other  er- 
ror shall  be  assigned  or  regarded  as  a  ground  of  reversal  in 
any  such  case  as  aforesaid  than  such  as  appears  on  the  face 
of  the  record  and  immediately  respects  the  before  men- 
tioned questions  of  validity  or  construction  of  the  said  con- 
stitution, treaties,  statutes,  commissions,  or  authorities  in 
dispute."  That  this  section  confines  the  appellate  powers 
of.  the  supreme  court  strictly  within  the  limits  of  the  con- 
stitution, provided  such  appellate  powers  exist,  or  are 
given  at  all,  I  believe  has  never  been  seriously  disputed. 
Mr.  Calhoun,  in  his  "Discourse  on  the  Constitution  and 
Government  of  the  United  States,"  when  commenting  on 
the  section  in  question  and  the  clauses  of  the  constitution 
granting  and  defining  the  judicial  power,  says  (Cal- 
houn's  Works,  vol.  1,  page  321)  :  "The  question  is  thus 
narrowed  down  to  a  single  point.  Has  congress  the  au- 
thority in  carrying  this  power  into  execution  to  make  a  law 
providing  for  an  appeal  from  the  courts  of  the  several 
states  to  the  supreme  court  of  the  United  States  ?"  I  shall, 
therefore,  pass  directly  to  the  consideration  of  the  powers 
conferred  by  the  constitution.  The  two  first  subdivisions 
of  the  second  section  of  the  third  article,  familiar  to  all, 
are  as  follows : 

"1.  The  judicial  power  shall  extend  to  all  cases  in  law 
and  equity  arising  under  this  constitution,  the  laws  of  the 
United  States,  and  treaties  made,  or  which  shall  be  made 
under  their  authority;  to  all  cases  affecting  ambassadors, 


79  Ableman  v.  Booth. 

other  public  ministers  and  consuls;  to  all  cases  of  admi- 
ralty and  maritime  jurisdiction;  to  controversies  to  which 
the  United  States  shall  be  a  party ;  to  controversies  between 
two  or  more  states,  between  citizens  of  different  states,  be- 
tween citizens  of  the  same  state,  claiming  lands  under 
grants  of  different  states,  and  between  a  state,  or  the  citi- 
zens thereof,  and  foreign  states,  citizens  or  subjects.' 

"2.  In  all  cases  affecting  ambassadors,  other  public  min- 
isters and  consuls,  and  those  to  which  a  state  shall  be  a 
party,  the  supreme  court  shall  have  original  jurisdiction. 
In  all  the  other  cases  before  mentioned,  the  supreme  court 
shall  have  appellate  jurisdiction,  both  as  to  law  and  fact, 
with  such  exceptions,  and  under  such  regulations  as  the 
congress  shall  make." 

The  jurisdiction  here  conferred  has  been  very  properly 
divided  into  two  parts ;  that  which  arises  out  of  the  subject 
matter,  and  that  which  arises  out  of  the  character  of  the 
parties  litigant.  Mr.  Calhoun,  without  his  usual  accuracy, 
page  259,  says :  "The  first  clause  which  extends  it  'to  all 
cases  in  law  and  equity,  arising  under  this  constitution, 
the  laws  of  the  United  States,  and  treaties  made,  or  which 
may  be  made  under  their  authority,  embraces  the  former ; 
and  the  residue  of  the  section,  the  latter.'  '  This,  as  a 
general  proposition,  may  be  true,  but  is  not  exactly  so. 
"Controversies  between  citizens  of  the  same  state,  claiming 
lands  under  grants  of  different  states,"  are  clearly  cases 
where  it  is  the  subject  matter  and  not  the  character  of  the 
parties  litigant,  which  gives  jurisdiction.  The  general 
rule  drawn  from  this  subdivision,  as  it  respects  jurisdic- 
tion given  by  the  character  of  the  parties  litigant,  without 
regard  to  the  nature  of  the  controversy,  being,  that  as  be- 
tween citizens  of  the  same  state,  the  federal  courts  have 
no  jurisdiction,  whilst  between  those  of  different  states, 


Opinions  of  Chief  Justice  Dixon.  80 

they  have;  and  that  as  between  the  latter,  their  jurisdic- 
tion would  attach  in  such  cases,  without  the  aid  of  this 
clause,  whilst  as  between  the  former,  it  would  not ;  it  is  evi- 
dent that  it  is  the  subject  matter,  and  not  the  character  of 
the  parties  litigant,  which  confers  jurisdiction  in  such  con- 
troversies. The  same  remarks  are  true  of  "cases  of  admi- 
ralty and  maritime  jurisdiction."  This,  however,  is  evi- 
dently an  oversight  on  the  part  of  the  learned  commenta- 
tor— not  necessary  perhaps  to  have  been  noticed  here. 
The  whole  controversy  hinges  upon  the  proper  significa- 
tion of  the  words,  "all  cases  in  law  and  equity,"  in  the 
first  subdivision. 

As  there  is  no  provision  in  the  constitution  which  ex- 
pressly gives  to  congress  the  power  to  provide  for  appeals 
from  the  state  courts  to  the  supreme  court  of  the,  United 
States,  if  such  power  exists  on  the  part  of  congress  it  must 
be  because  the  constitution  itself  vests  in  the  supreme 
courts  of  the  United  States  such  appellate  power,  and  be- 
cause such  legislation  becomes  necessary  and  proper  to 
carry  such  power  into  execution.  The  17th  subdivision  of 
section  8,  of  article  I,  the  previous  subdivisions  of  which 
are  specifications  of  the  express  powers  given  to  congress, 
provides  that  congress  shall  have  the  power  "to  make  all 
laws  which  shall  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers 
vested  by  this  constitution  in  the  government  of  the 
United  States,  or  any  department  or  officer  thereof." 

IsTow,  whether  such  jurisdiction  is  vested  in  the  judicial 
department  of  the  government  or  not,  depends  on  the 
meaning  of  the  words,  "all  cases  in  law  and  jidty"  The 
supreme  court  of  the  United  States  have  twice,  upon  full 
argument,  first,  in  1816,  in  the  case  of  Martin  v.  Hunter's 
Lessee,  1  Wheat.  304;  and  secondly,  in  1821,  in  Cohens 


81  Ableman  v.  Booth. 

v.  Virginia,  6  Wheat.  264,  passed  directly  on  the  question 
and  decided  that  these  words  mean  all  cases  in  law  and 
equity  in  any  court  within  the  United  States,  whether  state 
or  federal,  in  which  a  right  of  action  or  a  defense  arises 
or  is  claimed  under  the  constitution,  laws  or  treaties  of  the 
United  States ;  and  hence  that  the  appellate  jurisdiction  of 
that  court  under  the  second  subdivision  of  the  section, 
extends  to  all  such  cases,  "with  such  exceptions  and  under 
such  regulations"  as  congress  has  made  by  the  25th  sec- 
tion of  the  judiciary  act.  These  decisions  have  since  been 
almost  universally  acquiesced  in  and  regarded  by  the  state 
tribunals  as  the  settled  law  of  the  land.  The  first  of  these 
eases  arose  under  circumstances  of  peculiar  delicacy  and 
interest.  Martin,  the  plaintiff  in  error,  had  obtained  from 
the  supreme  court  of  the  United  States,  a  writ  of  error  re- 
quiring the  court  of  appeals  of  Virginia  to  certify  to  the 
supreme  court,  for  re-examination,  the  record  of  the  judg- 
ment rendered  by  them  in  the  case  of  the  April  term,  1810, 
reported  1  Munf.  218.  The  president  of  the  court  of  ap- 
peals complied  with  the  writ  by  certifying  a  transcript. 
The  supreme  court,  at  the  February  term,  1813,  7  Cranch, 
603,  reversed  the  judgment  rendered  by  the  court  of  ap- 
peals, and  issued  its  mandate  to  that  court,  requiring  the 
judgment  rendered  by  them  to  be  carried  into  due  execu- 
tion. This  mandate  the  court  of  appeals,  at  April  term, 
1814,  refused  to  obey,  and  resolved  that  the  appellate 
power  of  the  supreme  court  of  the  United  States  did  not 
extend  to  that  court ;  and  that  so  much  of  the  act  of  con- 
gress as  extended  the  appellate  jurisdiction  of  the  supreme 
court  to  that  court,  was  not  warranted  by  the  constitution^ 
and  that  the  proceedings  of  the  supreme  court  were  coram, 
non  jwdice  as  to  that  court. 

This  proceeding  of  the  court  of  appeals  with  the  argu- 
6 


Opinions  of  Chief  Justice  Dixon.  82 

ments  of  the  judges,  which  have  been  very  little  strength- 
ened by  what  has  been  said  since  that  time,  and  who  sev- 
erally filed  opinions,  will  be  found  reported  in  4  Munford, 
1.  Upon  this  refusal  a  writ  of  error  was  awarded,  and 
the  cause  was  brought  again  before  the  supreme  court  of 
the  United  States,  in  the  case  above  cited,  in  which  the 
judgment  of  the  court  below  drew  in  question  and  denied 
the  validity  of  the  statute  of  the  United  States,  giving  an 
appeal  from  the  state  court.  The  validity  of  this  statute 
was  the  only  question  before  the  court.  The  court  in  these 
cases  observed  what  must,  I  think,  be  obvious  to  every 
unprejudiced  mind,  and  what  those  who  deny  the  appellate 
power  admit,  as  I  shall  hereafter  show,  that  the  object  and 
effect  of  the  first  clause  of  the  third  section  of  article  III, 
which  extends  the  judicial  power  to  all  cases  in  law  and 
equity,  arising  under  the  constitution  and  laws  of  the 
United  States,  and  treaties  made  under  their  authority, 
is  to  make  that  power  co-extensive  with  the  constitution, 
and  adequate  to  the  protection  and  enforcement  of  all  the 
rights  and  powers  given  by  it ;  a  power  which  is  so  indis- 
pensable to  the  existence  of  every  government,  that,  with 
the  exception  of  cases  affecting  ambassadors  and  other 
public  ministers  and  consuls  and  cases  of  admiralty  and 
maritime  jurisdiction,  which  are  essential  to  the  sov- 
ereignty of  the  Union,  as  they  enter  into  and  affect  na- 
tional rights  and  policy,  and  the  law  and  comity  of  na- 
tions, the  jurisdiction  conferred  by  the  remaining  clauses, 
which  mainly  depends  on  the  character  of  the  parties  liti- 
gant, becomes  comparatively  unimportant,  being  almost 
•entirely  unnecessary  to  the  effectual  operations  of  the 
government,  and  given  through  motives  of  policy  and  expe- 
diency, to  avoid  those  state  attachments  and  prejudices 
which  it  was  supposed  might  render  such  controversies 


83  Ableman  v.  Booth. 

more  safe  in  the  hands  of  the  federal  than  the  state  tribu- 
nals, and  for  the  purpose  of  extending  the  power  of  the 
federal  courts  to  cases  to  which  otherwise  it  would  not  ex- 
tend, under  the  general  grant  contained  in  the  first  clause. 
Such  is  the  plan  and  obvious  import  of  the  language  used, 
and  it  seems  to  me  that  no  refinement  of  construction  can 
remove,  or  take  it  away.  The  powers  granted  by  the 
first  clause  were  of  paramount  importance  to  the  very  ex- 
istence of  the  future  government,  and  could  not  have  been 
overlooked  or  misunderstood  by  the  framers,  whilst  those 
given  by  the  other  clauses,  especially  the  two  last,  might 
have  been  entirely  omitted  without  serious  consequences. 

The  court  further  supposed,  what  congress  by  the  pas- 
sage of  the  statute  in  question  supposed,  that  the  framers 
of  the  constitution  contemplated  that  cases  within  the  cog- 
nizance of  the  courts  of  the  United  States,  would  arise  in 
the  state  courts  in  the  course  of  their  ordinary  jurisdic- 
tion; and  that  the  state  courts  would  and  must  incident- 
ally take  cognizance  of  and  decide  cases  arising  under  the 
constitution,  laws  and  treaties  of  the  United  States.  This 
position,  those  who  deny  the  appellate  jurisdiction,  not 
only  assume  to  be  correct,  but,  with  the  exception  of  Judge 
Cabell,  of  the  court  of  appeals  of  Virginia,  who  in  his 
opinion  in  Martin  v.  Hunter,  4  Munf.  15,  intimates  a  con- 
trary conclusion,  insist  that  there  is  no  power  on  the  part 
of  congress,  by  legislation,  to  withdraw  such  cases  from 
the  cognizance  and  jurisdiction  of  the  state  courts. 

It  was  further  remarked  by  the  court  that  the  constitu- 
tion unavoidably  dealt  in  general  language ;  that  it  did  not 
provide  for  minute  specification  of  powers,  or  declare  the 
means  by  which  those  powers  should  be  carried  into  execu- 
tion. It  was  foreseen  that  this  would  be  a  difficult  and 
perilous,  if  not  an  impracticable  task.  Hence  its  powers 


Opinions  of  Chief  Justice  Dixon.  84 

were  expressed  in  general  terms,  leaving  it  to  congress 
from  time  to  time  to  adopt  its  own  means  to  carry  into 
effect  legitimate  objects,  and  to  mould  and  model  the  exer- 
cise of  its  powers  as  its  own  wisdom  and  the  public  inter- 
ests should  require.  They  observed  that  a  distinction 
seemed  to  be  drawn  between  the  two  classes  of  cases  enu- 
merated in  the  constitution.  The  first  class  included 
cases  arising  under  the  constitution,  laws  and  treaties  of 
the  United  States;  cases-  affecting  ambassadors  and  other 
public  ministers  and  consuls,  and  cases  of  admiralty  and 
maritime  jurisdiction.  In  that  class  the  expression  was 
that  the  judicial  power  should  extend  to  all  classes.  That 
as  these  cases  were  of  vital  importance  to  the  sovereignty 
of  the  union,  the  original  or  appellate  jurisdiction  in  them 
ought  therefore  to  be  commensurate  with  the  mischiefs  in- 
tended to  be  remedied  and  the  policy  in  view.  But  that 
in  the  subsequent  clauses,  which  embraced  all  the  other 
cases  of  national  cognizance  and  formed  the  second  class, 
the  constitution  seemed,  ex  industria,  to  drop  the  word  all 
and  to  extend  the  judicial  authority  not  to  all  controversies, 
but  to  cpntroversies  in  which  the  United  States  should  be 
a  party,  etc.,  leaving  it  to  congress  to  'qualify  the  juris- 
diction, original  or  appellate,  as  sound  policy  might  dic- 
tate. It  was  furthermore  said  by  the  court  that,  as  the 
state  tribunals  might  in  the  exercise  of  the  powers  with 
which  the  constitution  found  them  invested,  as  the  courts 
of  independent  sovereignties,  have  and  exercise  concurrent 
original  jurisdiction  over  all  or  some  of  the  cases  provided 
for  in  the  constitution,  and  as  the  constitution  contem- 
plated that  they  should  exercise  such  jurisdiction,  and  as 
many  cases  under  the  constitution,  laws  and  treaties  of  the 
United  States  might  arise  in  the  state  courts  which  could 
not  originate  or  exist  in  the  federal  courts,  it  would 


85  Ableman  v.  Booth. 

necessarily  folldw,  if  the  constitution  was  held  to  limit 
the  appellate  jurisdiction  to  cases  pending  in  the  courts  of 
the  United  States,  notwithstanding  the  absolute  and  im- 
perative language  of  the  constitution  that  "the  judicial 
power  shall  extend  to  all  cases  in  law  and  equity  arising 
under  this  constitution,"  etc.,  that  there  would  be  a  very 
large  class  of  cases  under  the  first  and  most  important 
clause  of  the  section  which  could  never  be  reached  by  the 
federal  courts,  either  by  virtue  of  their  original  or  appel- 
late jurisdiction. 

It  is  this  conclusion,  to  which  a  denial  of  the  appellate 
jurisdiction  inevitably  leads,  that  determines  my  mind 
upon  the  question.  I  have  looked  in  vain  through  the 
arguments  and  commentaries  of  those  who  maintain  that 
there  is  no  appellate  jurisdiction,  for  a  satisfactory  answer 
to  it.  I  can  find  none.  It  is  either  passed  in  silence,  or 
with  a  few  general  remarks,  founded,  for  the  most  part, 
on  assumptions  which  cannot  be  sustained.  It  virtually 
makes  the  first  and  leading  clause,  which  declares  that  the 
judicial  power  of  the  federal  courts  shall  extend  to  all 
cases  arising  under  the  constitution,  laws  and  treaties  of 
the  United  States,  a  dead  letter — mere  surplusage,  and 
limits  those  courts,  in  a  great  majority  of  instances,  to 
taking  jurisdiction  of  such  cases  merely  as  an  incident  to 
the  jurisdiction  which  they  acquire  by  reason  of  the  char- 
acter of  the  parties  litigant  under  the  minor  grants  of 
power  contained  in  the  subsequent  part  of  the  section ;  for 
all  practical  purposes  under  such  construction,  the  first 
clause  might  as  well  have  been  entirely  omitted.  The 
judicial  power  of  the  federal  courts  would  have  been  nearly 
as  extensive,  without,  as  with  it,  the  only  difference  being 
that  with  it,  a  shadow  of  power  is  given  with  reference  to 
a  particular,  and  by  far  the  least  numerous  of  any  class  of 


Opinions  of  Chief  Justice  Dixon.  86 

cases,  where  otherwise  the  character  of  the  parties  would 
not  confer  jurisdiction;  that  is,  in  those  cases  where  the 
plaintiff  is  able,  from  the  nature  of  his  case,  to  set  up  in 
his  declaration  or  complaint,  some  right  or  equity  against 
the  defendant,  arising  under  the  constitution,  laws  or 
treaties  of  the  United  States.  In  such  cases,  the  facts  con- 
ferring jurisdiction,  would,  by  the  plaintiff's  showing,  ap- 
pear affirmatively  upon  the  record,  and  the  court  might 
entertain  the  case.  Without  the  power  of  appeal,  this, 
so  far  as  I  can  see,  is  the  utmost  practical  effect  that  can 
be  given  to  the  clause  in  question.  Such  a  construction, 
if  it  were  not  directly  at  war  with  the  words  used,  is,  in 
my  opinion,  altogether  too  narrow  and  illiberal.  It  makes 
the  provision  altogether  inadequate  for  the  ends  designed 
to  be  attained  by  it,  viz. :  Protection  and  preservation  to 
the  government,  by  means  of  its  own  judiciary,  and  an 
equal  regard  to  the  constitutional  rights  of  all  of  its  citi- 
zens. 

Can  it  be  reasonably  contended  that  the  framers,  by  the 
clause  in  question,  intended  to  provide  that  a  plaintiff  in 
certain  cases,  but  not  in  all,  should  have  the  privilege  of 
having  his  rights,  arising  under  the  constitution  and  laws 
of  the  United  States,  determined  in  their  courts,  and  that 
in  no  case  should  such  privilege  be  extended  to  a  defend- 
ant, and  that  such  should  be  the  extent  of  the  jurisdiction 
of  the  federal  judiciary,  in  cases  arising  under  the  consti- 
tution, laws  and  treaties  of  the  United  States  as  such? 
Such  a  provision  gravely  inserted  in  such  an  instrument 
would  justly  excite  ridicule.  "A  case  in  law  or  equity," 
says  Chief  Justice  Marshall,  "consists  of  the  right  of  one 
party  as  well  as  of  the  other,  and  may  be  truly  said  to 
arise  under  the  constitution  or  a  law  of  the  United  States, 
whenever  its  correct  decision  depends  on  the  construction 


87  Ableman  v.  Booth. 

of  either."  Such  a  construction  would,  furthermore,  place 
it  in  the  power  of  any  one  state,  beyond  all  peaceful  rem- 
edy, to  arrest  the  execution  of  the  laws  of  the  entire  Union, 
and  to  break  down  and  destroy  at  pleasure  every  barrier 
created  and  right  given  by  the  constitution.  But  aside 
from  these  or  similar  considerations,  it  seems  to  me  that 
by  limiting  the  judicial  power  to  a  few  cases  only,  it  vio- 
lates the  plain  language  of  the  constitution,  which  declares 
that  such  power  shall  extend  to  all  cases  in  law  or  equity 
arising  under  it  and  under  the  laws  and  treaties  of  the 
United  States.  It  is  a  familiar  rule  in  the  construction 
of  written  instruments,  often  applied  by  the  courts  of  this 
country  in  the  interpretation  of  constitutions,  that  they 
are  to  be  so  construed  as  to  give  effect  to  all  their  parts, 
especially  when  such  construction  is  in  harmony  with  the 
whole  instrument,  and  supported  by  the  plain  sense  of  the 
words  used.  Such  is  the  case  with  regard  to  the  appellate 
power  in  the  section  before  us.  The  practical  result  of  a 
contrary  construction  may  be  illustrated  by  a  single  ex- 
ample. Suppose  a  state  were  to  pass  a  law  that  as  between 
its  own  citizens  the  bills  of  certain  banks  should  be  a  good 
tender  in  payment  of  debts.  Laws  akin  to  this  have  been 
enacted.  Kentucky,  in  1820,  passed  a  law  authorizing, 
the  defendant  in  any  judgment  or  decree  theretofore  or 
thereafter  obtained  to  replevy  for  two  years  all  property 
levied  on  by  virtue  of  any  execution  issued  upon  any  such 
judgment  or  decree,  unless  the  plaintiff,  his  agent  or  attor- 
ney, should  endorse  on  the  execution  a  direction  in  writing 
that  the  bills  of  either  of  two  banks  of  that  state,  or  their 
branches  might  be  received  by  the  officer  in  discharge  of 
the  whole  of  such  execution.  Suppose  that  under  such 
law  the  debtor,  relying  on  the  same  as  a  defense,  tenders 
the  bills  of  such  banks  to  the  creditor  in  payment  of  his 


Opinions  of  Chief  Justice  Dixon.  88 

debt.  Now,  although  the  law  palpably  violates  the  consti- 
tution of  the  United  States,  and  the  defense  urged  under 
it  is  for  that  reason  invalid,  how  is  the  judicial  power  of 
the  federal  courts  ever  to  be  extended  to  such  a  case  ? 

There  is  nothing  in  the  character  of  the  parties  which 
gives  jurisdiction.  The  creditor  can  make  no  averment 
which  will  confer  it.  If  he  brings  his  action  before  any 
of  those  courts,  it  must,  on  the  debtor's  motion  be  dis- 
missed. Thus  it  will  happen,  that  the  very  party  whose 
constitutional  rights  have  been  violated,  and  who  is  there- 
fore deeply  interested  in  obtaining  redress  and  protection 
at  the  hands  of  the  tribunals  established  by  the  constitution 
for  that  purpose,  is  forever  precluded  from  doing  so,  al- 
though it  expressly  declares  that  their  power  shall  extend 
to  all  cases  arising  under  it ;  and  he  is  compelled,  if  at  all, 
to  seek  an  ultimate  remedy  before  the  courts  of  the  state 
of  whose  action  he  complains.  Like  illustrations  might  be 
made  in  the  case  of  a  state  law  impairing  the  obligations 
of  contracts,  of  which  the  books  abound  in  instances,  ex 
post  facto  laws,  bills  of  attainder  and  state  laws  directly 
impeaching  the  laws  and  treaties  of  the  United  States, 
but  it  is  deemed  unnecessary.  The  effect  of  this  construc- 
tion is  not,  as  is  claimed  by  its  advocates,  to  make  the 
jurisdiction  of  the  state  courts  in  cases  arising  under  the 
constitution,  laws  and  treaties  of  the  United  States,  con- 
current merely  with  the  jurisdiction  of  the  federal  courts, 
but  in  a  great  majority  of  instances  to  make  it  absolutely 
and  entirely  exclusive — a  position  which  it  seems  to  me 
disproves  itself,  by  proving  too  much. 

The  supreme  court,  in  the  cases  which  I  have  cited,  re- 
ferred to  other  parts  of  the  constitution,  and  entered  into 
profound  and  elaborate  arguments  in  support  of  their  posi- 
tion, drawn  from  the  early  action  of  the  federal  and  state 


89  Ableman  u.  Booth. 

governments  and  the  theory  and  nature  of  government 
itself,  which  I  deem  it  unnecessary  to  repeat  here.  Chan- 
cellor Kent,  in  the  1st  volume  of  his  Commentaries,  page 
349,  while  commenting  on  the  25th  section  of  the  judiciary 
act,  and  the  decisions  of  the  supreme  court  above  referred 
to,  says :  "All  the  enumerated  cases  of  federal  cognizances 
are  those  which  touch  the  safety,  peace  and  sovereignty  of 
the  nation,  or  which  presume  that  state  attachments,  state 
prejudices,  state  jealousies  and  state  interests,  might  some- 
times obstruct  or  control  the  regular  administration  of  jus- 
tice. The  appellate  power  in  all  these  cases,  is  founded 
on  the  clearest  principles  of  policy  and  wisdom,  and  is 
deemed  requisite  to  fulfill  effectually  the  great  and  benefi- 
cent ends  of  the  constitution.  It  is  likewise  necessary  in 
order  to  preserve  uniformity  of  decision  throughout  the 
United  States,  upon  all  subjects  within  the  purview  of  the 
constitution;  and  the  mischiefs  of  opposite  constructions 
and  contradictory  decisions  in  the  different  states,  on  all 
these  points  of  general  concern,  would  be  deplorable.  The 
supreme  court,  by  a  train  of  reasoning  which  appears  to  be 
unanswerable  and  conclusive,  came  to  the  decision,  that  the 
appellate  power  of  the  United  States  did  extend  to  cases 
pending  in  the  state  courts,  and  that  the  25th  section  of  the 
judiciary  act  of  1789,  authorizing  the  exercise  of  this  ju- 
risdiction in  the  specified  cases  by  a  writ  of  error,  was 
supported  by  the  letter  and  spirit  of  the  constitution." 

I  have  quoted  from  the  learned  Chancellor,  because  he 
is  justly  considered  one  of  the  purest,  most  enlightened 
and  patriotic  of  American  jurists,  and  because,  during  all 
of  his  long,  useful  and  illustrious  public  career,  he  never 
held  a  federal  office,  but  was  elevated  to  the  highest  posts 
of  judicial  honor  in  his  native  state,  and  cannot,  there- 
fore, be  justly  said  to  have  had  any  of  those  attachments  to 


Opinions  of  Chief  Justice  Dixon.  90 

federal  power,  and  inclinations  to  encroach  upon  the  sov- 
ereignty of  the  states,  which  are  so  often  attributed  by  the 
advocates  of  the  opposite  doctrine  to  the  eminent  men  who 
have  composed  the  supreme  court. 

The  theory  of  those  who  maintain  the  opposite  doctrine 
is,  that  the  word  "cases"  is  a  technical  term  (I  use  Mr. 
Calhoun's  language),  defined  in  law  to  be  a  suit  com- 
menced, and  that  it  "comprehends  only  suits  or  proceed- 
ings instituted  in  the  federal  court  invoking  the  exercise 
of  the  judicial  power  of  the  United  States ;"  that  the  sec- 
ond section  of  the  third  article,  when  construed  in  connec- 
tion with  the  first  section  which  provides  that  "the  judicial 
power  of  the  United  States  shall  be  vested  in  one  supreme 
court,  and  such  inferior  courts  as  the  congress  may,  from 
time  to  time,  ordain  and  establish,"  is  to  be  deemed  to 
refer  only  to  the  courts  to  be  established  under  the  first 
section,  and  that  the  appellate  power  granted  applies  only 
to  the  removal  of  cases  from  the  inferior  federal  courts  to 
the  supreme  court;  in  other  words,  that  appellate  juris- 
diction only  exists  in  the  supreme  court  in  those  cases 
where  the  inferior  federal  courts  possess  original  jurisdic- 
tion. The  radical  defect  of  this  doctrine  -is,  that  by  giving 
this  narrowed  meaning  in  the  word  "cases"  it  almost  en- 
tirely cuts  off,  as  has  been  above  shown,  the  power  of  the 
federal  courts  with  which  the  advocates  of  this  doctrine 
themselves  admit  it  was  the  intention  of  the  framers  to  in- 
vest them  by  the  clause  in  question,  and  vests  it  exclusively 
in  the  state  courts. 

Mr.  Calhoun,  at  page  259  of  his  discourse,  in  speaking 
of  the  first  clause  of  the  second  section,  says :  "It  is  clear 
on  its  face,  that  the  object  of  the  clause  was  to  make  the 
jursidiction  of  the  judicial  power  commensurate  with  the 
authority  of  the  constitution  and  the  several  departments 


91  Ableman  v.  Booth. 

of  the  government,  as  far  as  related  to  cases  arising  under 
them,  and  no  further." 

And  again,  on  page  321,  in  speaking  of  the  first  subdi- 
vision of  the  second  section,  which  for  convenience  he  di- 
vides into  two  clauses,  viz. :  such  as  confer  jurisdiction 
with  reference  to  the  subject  matter,  and  such  as  confer 
jurisdiction  with  reference  to  the  parties  litigant,  he  says : 
"The  object  of  the.  former  of  these  two  clauses  is  simply 
to  extend  the  judicial  power,  so  as  to  make  it  commensu- 
rate with  the  other  powers  of  the  government."  It  is 
very  difficult  for  me  to  perceive  how,  under  the  first  clause, 
the  judicial  power  of  the  federal  courts  is  made  commen- 
surate with  the  authority  of  the  constitution,  and  the  other 
powers  of  the  government,  so  long  as  the  clause  is  to  be  so 
construed  that  such  power  can  in  no  event  reach  a  great 
majority  of  the  cases  arising  under  them.  On  page  328, 
he  explains  to  us  how  he  would  make  the  judicial  power 
partially  commensurate,  and  in  doing  even  so  much,  he  is 
obliged  to  assume,  as  we  shall  see,  what  is  not  true  in  point 
of  fact  He  says:  "The  extension  of  the  judicial  power 
of  the  United  States,  so  as  to  make  it  commensurate  with 
the  government  itself,  is  sufficient,  without  the  aid  of  an 
appeal  from  the  courts  of  the  states,  to  secure  all  the  uni- 
formity consistent  with  a  federal  government  like  ours.  It' 
gives  choice  to  the  plaintiff  to  institute  his  suit,  either  in 
the  federal  or  state  courts,  at  his  option.  If  he  select  the 
latter,  and  its  decision  be  adverse  to  him,  he  has  no  right 
to  complain ;  nor  has  he  a  right  to  a  new  trial  in  the  former 
court,  as  it  would,  in  reality,  be,  under  the  cover  of  an 
appeal.  He  selected  his  tribunal,  and  ought  to  abide  the 
consequences.  But  his  fate  would  be  a  warning  to  all 
other  plaintiffs  in  similar  cases.  It  would  show  that  the 
state  courts  were  adverse,  and  admonish  them  to  com- 


Opinions  of  Chief  Justice  Dixon.  92 

mence  their  suits  in  the  federal  courts;  and  thereby  uni- 
formity of  decision,  in  such  cases,  would  be  secured.  ISTor 
would  the  defendant,  in  such  cases,  have  a  right  to  com- 
plain, and  have  a  new  trial  in  the  courts  of  the  United 
States,  if  the  decision  of  the  state  courts  should  be  adverse 
to  him.  If  he  be  a  citizen  of  the  state,  he  would,  have  no 
right  to  do  either,  if  the  courts  of  his  own  state  should  de- 
cide against  him;  nor  could  a  resident  of  the  state,  or  so- 
journer  in  it,  since  both,  by  voluntarily  putting  themselves 
under  the  protection  of  its  laws,  are  bound  to  acquiesce 
in  the  decision  of  its  tribunals." 

Now,  admitting,  by  the  narrow  notions  to  be  implied 
from  the  language  here  used,  that  we  acquire  no  rights  by 
virtue  of  our  character  as  citizens  of  the  United  States, 
and  that  these  wise  and  beneficent  provisions  of  the  con- 
stitution were  intended  only  for  the  benefit  of  those  who 
can  come  into  court  in  the  character  of  plaintiffs,  yet  it  is 
not  true  that  the  plaintiff  can  institute  his  suit  either  in  the 
federal  or  state  courts,  at  his  option.  The  case  above 
supposed  fairly  illustrates  the  incorrectness  of  this  assump- 
tion. He  cannot  in  such  a  case  at  his  option,  either  by  the 
system  of  legal  proceedings  which  prevailed  at  the  time  the 
constitution  was  adopted,  and  with  reference  to  which  it 
must  have  been  framed,  or  by  any  system  which  has  since 
prevailed,  commence  his  suit  with  effect  in  the  federal 
courts.  He  cannot  by  any  pleading  on  his  part  raise  the 
question  which  is  to  give  the  court  jurisdiction.  It  must 
be  raised  by  the  defendant,  and  that  as  his  voluntary  act, 
for  the  court  cannot  compel  him  to  set  up  the  defense. 
If  he  fails  to  move  a  dismissal,  but  makes  any  other  plea 
to  the  action,  the  suit  must  still  be  dismissed,  as  the  juris- 
dictional  facts  will  not  appear.  Thus,  the  plaintiff  is 
compelled  to  sue  in  the  state  court,  where  the  defense  is  at 


93  Ableman  v.  Booth. 

once  made.  But  admitting  that  the  defendant  might  set 
up  his  defense  in  the  federal  court,  so  as  to  give  it  juris- 
diction to  hear  and  determine  the  action,  it  would  then 
be  the  option  of  the  defendant,  and  not  of  the  plaintiff, 
which  would  make  that  court  the  forum  for  the  trial  of  the 
cause. 

Chief  Justice  Bartley,  of  Ohio,  in  his  very  able  and 
somewhat  celebrated  dissenting  opinion,  in  the  case  of 
Piqua  Bank  v.  Knoup,  6  Ohio  State,  342,  by  a,  to  my 
mind,  rather  "unsatisfactory  mode  of  reasoning,"  attempts 
to  answer  the  argument  of  the  supreme  court  upon  this 
question  in  Martin  v.  Hunter,  and  in  so  doing  falls  into 
the  same  error.  He  says:  "In  the  case  of  Martin  v. 
Hunter,  1  Wheat.  340,  the  supreme  court  of  the  United 
States  concedes  the  fact,  that  the  language  of  the  constitu- 
tion extending  the  judicial  power  to  "all  cases"  arising  out 
of  the  enumerated  subjects,  does  not  confer  exclusive  ju- 
risdiction touching  these  matters.  But  Mr.  Justice  Story 
says  that  "as  the  state  courts  will  exercise  concurrent  juris- 
diction over  many  of  the  enumerated  subjects,  if  no  appeal 
can  be  taken  from  the  state  courts  to  the  federal  courts, 
the  judicial  power  of  the  United  States  will  extend  only 
to  some,  and  not  all  such  cases!  This  is  certainly  an  un- 
satisfactory mode  of  reasoning.  If  even  the  right  to  ap- 
peal from  the  state  courts  to  the  federal  courts  existed,  it 
would  frequently  happen  that  an  appeal  would  not  be  taken 
from  the  adjudication  in  the  state  court. 

"In  such  case,  could  it  be  pretended  that  the  constitu- 
tional exercise  of  the  judicial  power  of  the  United  States 
was  defeated  ?  Certainly  not.  It  may  be  said,  however, 
that  the  failing  party  had  the  option  to  appeal,  and  bring 
his  case  within  the  judicial  power  of  the  United  States. 
But  if  this  extension  of  the  judicial  power  of  the  United 


Opinions  of  Chief  Justice  Dixon.  94 

States  to  all  cases,  etc.,  is  answered  by  leaving  it  to  the 
option  of  one  of  the  parties  to  bring  the  case  within  the 
exercise  of  it,  the  option  of  the  party  instituting  the  suit 
to  bring  it  in  the  federal  courts,  is  all  sufficient.  This 
would  be  extending  the  judicial  power  of  the  United 
States  to  all  of  the  enumerated  cases,  in  accordance  with 
the  constitution,  which  can  mean  nothing  more  than  au- 
thority to  exercise  jurisdiction  over  any  of  the  specified 
cases,  whenever  a  party  shall  elect  to  institute  a  suit  in 
the  federal  courts  touching  the  same."  Here,  again,  it  is 
assumed  that  the  constitution  provides  for  courts,  and  in- 
vests them  with  power  to  decide  cases  arising  under  it  for 
the  benefit  of  plaintiffs  only,  and  that  they  can,  if  they 
choose,  in  all  cases,  institute  their  suits  in  the  federal 
courts,  and  that  thus  the  mandate  of  the  constitution,  that 
the  judicial  power  shall  extend  to  all  cases,  is  satisfied. 
'The  learned  judge  is  quite  right  in  his  concluding  sen- 
tence, that  it  is  the  power  to  exercise  jurisdiction  in  any 
case,  when  its  exercise  is  invoked  by  either  party,  and  not 
that  it  shall  in  all  proper  cases  be  invoked,  that  is  con- 
tended for.  In  another  place,  in  commenting  on  the  same 
clause,  he  says:  "The  constitution  does  not  say  that  the 
judicial  power  shall  extend  to  all  questions  arising  under 
the  constitution,  laws  and  treaties  of  the  United  States. 
The  idea  that  the  judicial  power  of  the  United  States  ex- 
tends to  every  question  arising  under  the  constitution,  laws 
and  treaties  of  the  United  States,  is  not  only  an  absurdity, 
but  an  impracticability."  This  branch  of  his  argument 
was  completely  answered  by  Chief  Justice  Marshall,  in 
Cohens  v.  Virginia,  more  than  thirty-five  years  before  the 
learned  judge  wrote  his  opinion.  He  says:  "This  may 
be  very  true,  but  by  no  means  justifies  the  inference  drawn 


95  Ableman  v.  Booth. 

from  it.  The  article  does  not  extend  the  judicial  power 
to  every  violation  of  the  constitution  which  may  take  place, 
but  to  a  'case  in  law  or  equity,'  in  which  a  right  under  such 
law  is  asserted  in  a  court  of  justice.  If  the  question 
cannot  be  brought  into  a  court,  then  there  is  no  case  in  law 
or  equity,  and  no  jurisdiction  is  given  by  the  words  of  the 
article." 

Much  time  is  spent  by  Chief  Justice  Bartley  and  those 
who  agree  with  him  in  finding  fault  with  congress  foi* 
what  is  said  to  be  a  distinction  invidious  to  the  state  tribu- 
nals made  by  the  statute  under  consideration,  by  which  it 
is  said  that  the  decision  of  the  state  tribunals,  if  they  are 
in  favor  of  the  validity  of  a  law  of  congress,  etc.,  are  pre- 
sumed to  be  right,  and  no  appeal  is  given,  but  if  such  de- 
cisions are  against  the  validity  of  such  law,  then  they  are 
presumed  to  be  wrong,  and  therefore  an  appeal  is  given. 
Much  complaint  is  also  made  against  the  supreme  court, 
because  it  is  said  that  the  court  always  sustains  the  action 
of  congress.  Whether  these  accusations  be  true  or  false 
has  but  little  to  do  with  this  question.  If  it  be  granted 
that  both  congress  and  the  supreme  court  have  improperly 
discharged  the  high  trusts  reposed  in  them  by  the  Ameri- 
can people,  it  has  no  tendency  to  prove  or  disprove  the  ex- 
istence of  this  power.  But  I  have  already  gone  much 
further  than  I  at  the  outset  intended,  and  further  than  I 
feel  warranted  in  going.  The  subject  is  one  of  much  in- 
terest, and  it  is  difficult  to  know  where  to  stop.  If  I  have 
succeeded  in  causing  some  of  the  principal  reasons  why  I 
feel  bound  by  the  oath  which  I  have  taken  to  depart  from 
what  seems  to  have  been  the  recent  decision  of  this  court 
on  the  question  under  consideration,  to  be  understood,  I 
have  done  all  that  I  expected  or  desired  to  do.  In  my 


Opinions  of  Chief  Justice  Dixon.  96 

opinion  the  motions  should  be  sustained,  and  the  man- 
dates of  the  supreme  court  filed  with  the  clerk  of  this 
court. 

NOTE. 

The  interest  which  this  case  has,  is  historical,  rather 
than  legal.  So  firmly  settled  in  favor  of  the  contention  of 
Chief  Justice  Dixon  is  the  question  he  discusses  in  the 
foregoing  opinion,  that  it  is  hard  for  the  younger  genera- 
tion of  lawyers  to  understand  how  it  was  ever  even  within 
the  borders  of  debatable  law.  Much  more  is  it  difficult  to 
understand  how  the  court  of  last  resort  of  Wisconsin,  and 
some  other  States,  ever  decided  against  it.  That  such  de- 
cisions were  rendered,  and  for  a  time  adhered  to,  is  abun- 
dantly shown  by  the  reports. 

See  Hunter  v.  Martin,  4  Munford  (Va.)  1;  Padelford 
v.  Savannah,  14  Ga.  438 ;  Johnson  v.  Gorden,  4  Cal.  368 ; 
Stunt  v.  Steamboat  Ohio,  3  Oh.  Dec.  Reprint,  362 ;  also 
dissenting  opinion  of  Chief  Justice  Bartley  in  Piqua  Bank 
v.  Knoup,  6  Ohio  St.  344. 

The  decision  of  Chief  Justice  Dixon  in  Ableman  v. 
Booth,  testifies  at  once  to  his  ability  as  a  lawyer,  and  his 
courage  and  devotion  to  his  conception  of  duty  as  a  judge. 
The  Dred  Scott  case  (19  How.  393,  December  Term, 
1856),  had  been  decided  by  the  Supreme  Court  of  the 
United  States,  since  the  litigation  in  Ableman  v.  Booth 
had  begun.  The  still  more  recent  decision  of  the  Supreme 
Court  of  the  United  States  in  Alabama  v.  Booth  upholding 
the  validity  of  the  Fugitive  Slave  Law,  of  which  it  was 
said  in  the  North  that  it  made  every  man  a  slave  catcher, 
had  offended  and  affronted  the  people  of  the  whole  North, 
and  the  people  of  Wisconsin  in  particular,  and  there  can 
be  little  doubt  that  popular  disapproval  was  reflected  in  the 
action  of  the  Wisconsin  Supreme  Court  in  refusing  to 
permit  the  mandate  of  the  Supreme  Court  of  the  United 
States  to  be  filed  therein. 

Chief  Justice  Dixon  was  at  this  time  a  very  young  man, 
only  lately  elevated  to  the  Supreme  Bench  of  his  State,  and 
soon  would  be  obliged  to  stand  for  re-election  before  the 


97  Note  to  Ableman  v.  Booth. 

voters  of  his  State.  He  could  easily  have  treated  the  ques- 
tion before  the  Court  as  having  been  settled  by  the  Court 
before  he  became  a  member  of  it  and  thereby  have  escaped 
all  responsibility.  He  could  have  voted  in  dissent,  without 
filing  an  opinion,  and,  since  his  vote  could  not  have  affected 
the  action  of  the  Court,  have  attracted  little  attention.  He 
chose  the  course  which  brought  him  in  conflict  with  the 
previous  decision  of  the  Court,  as  well  as  with  the  wishes 
of  a  majority  of  the  people  of  his  State,  merely  because  he 
believed  it  to  be  right,  and  thereby  added  to  the  many  in- 
stances in  which  our  judges  have,  by  their  courage  and 
fidelity,  vindicated  the  confidence  reposed  in  them.  Some 
familiarity  with  the  litigation  leading  up  to  the  above 
opinion  of  Chief  Justice  Dixon-is  necessary,  in  order  to 
understand  the  full  significance  of  the  opinion. 

On  the  27th  day  of  May,  1854,  Sherman  M.  Booth  ap- 
plied to  the  Hon.  Abram  D.  Smith,  one  of  the  Justices  of 
the  Wisconsin  Supreme  Court,  for  a  writ  of  habeas  corpus 
to  be  directed  to  Stephen  Y.  R.  Ableman,  Marshal  of  the 
United  States  for  the  District  of  Wisconsin,  who,  it  was 
alleged,  restrained  the  said  Booth  of  his  liberty.  The 
process  by  which  the  prisoner  was  held  was  issued  by  a 
Court  Commissioner  of  the  District  Court  of  the  United 
States  for  the  District  of  Wisconsin,  and  recited  that 
Booth  was  charged  with  having  on  the  llth  day  of  March, 
1854,  at  the  City  of  Milwaukee,  "aided,  assisted  and  abet- 
ted a  person  named  Joshua  Glover,  held  to  service  or  labor 
in  the  State  of  Missouri,  under  the  laws  thereof,  and  being 
the  property  of  one  Benjamin  S.  Garland,  and  having 
escaped  therefrom  into  the  State  of  Wisconsin,"  etc.,  to 
escape  from  the  custody  of  the  Deputy  Marshal  of  the 
United  States.  The  warrant  recited  the  examination  be- 
fore the  Commissioner,  the  holding  to  bail,  the  neglect  and 
refusal  to  give  bail,  and  then  commanded  the  Marshal  to- 
convey  Booth  to  the  common  jail  of  Milwaukee,  etc.  Mr. 
Justice  Smith  granted  the  writ  and  discharged  the  pris- 
oner on  the  ground  that  the  Act  of  Congress  approved  Sep- 
tember 18,  1850,  known  as  the  Fugitive  Slave  Law,  for  a 
violation  of  which  Booth  had  been  arrested,  was  uncon- 
7 


Opinions  of  Chief  Justice  Dixon.  98 

stitutional,  and  for  the  further  reason  that  the  warrant  of 
commitment  stated  no  offense.  (3  Wis.,  p.  1.)  Upon  a 
writ  of  certiorari,  the  decision  of  Mr.  Justice  Smith  was 
reviewed  and  affirmed  by  the  Court  (In  re  Sherman  v. 
Booth,  3  Wis.  49). 

Afterwards  and  on  the  26th  of  October,  1854,  the 
Marshal,  Ableman,  sued  out  a  writ  of  error  returnable  to 
the  Supreme  Court  of  the  United  States  on  the  first  Mon- 
day of  December,  1854,  to  review  the  foregoing  judgment 
of  the  Supreme  Court  of  Wisconsin.  The  record  and  pro- 
ceedings of  the  case  were  duly  certified  by  the  Clerk  of  the 
Supreme  Court  of  Wisconsin,  to  the  Supreme  Court  of  the 
United  States,  in  the  usual  form,  in  obedience  to  the  writ 
of  error.  After  the  foregoing  proceedings  were  had,  Booth 
was  again  arrested,  but  this  time  on  a  warrant  issued  by 
a  United  States  District  Judge,  on  an  indictment  charging 
the  same  offense  as  that  previously  set  forth.  Before  trial 
on  this  second  indictment  Booth  again  applied  to  the  Su- 
preme Court  of  Wisconsin  for  his  release  on  habeas  corpus, 
but  the  court  refused  to  discharge  him  (3  Wis.  145). 
Thereafter  Booth  was  convicted  on  the  indictment  by  the 
United  States  District  Court  and  sentenced  to  imprison- 
ment. Whereupon  he  again  applied  to  the  Supreme  Court 
for  his  discharge  on  habeas  corpus.  The  application  was 
granted  and  Booth  was  discharged  (3  Wis.  157).  This 
case  is  usually  reported  under  the  title  of  United  States  v. 
Booth.  The  orders  of  the  Supreme  Court  of  Wisconsin  in 
each  case  were  obeyed  and  Booth  was  set  at  liberty,  as 
therein  directed.  A  writ  of  error  was  thereupon  allowed 
and  issued  from  the  Supreme  Court  of  the  United  States, 
upon  the  application  of  the  Attorney  General  of  the  United 
States,  to  review  the  judgment  of  the  Supreme  Court  of 
the  State  discharging  Booth  from  imprisonment  after  his 
trial  and  conviction.  To  this  writ  of  error  the  Supreme 
Court  of  Wisconsin  directed  the  Clerk  to  make  no  return 
and  to  enter  no  order  upon  the  journals  or  records  of  the 
Court  concerning  the  same.  An  order  was  thereupon  laid 
by  the  Supreme  Court  of  the  United  States  upon  the  Clerk 


99  Note  to  Ableman  v.  Booth. 

of  the  Supreme  Court  of  Wisconsin,  which  was  ignored 
(United  States  v.  Booth,  18  How.  476). 

Thereafter  the  Attorney  General  procured  and  filed  in 
the  Supreme  Court  of  the  United  States  a  certified  copy  of 
the  record  in  the  case  of  United  States  v.  Booth,  and  such 
copy  was  received  and  the  cause  heard  thereon.  Both  Able- 
man v.  Booth  and  the  United  States  v.  Booth  were  reversed 
by  the  Supreme  Court  of  the  United  States  (21  How. 
506). 

It  was  upon  the  refusal  of  the  Supreme  Court  of  Wis- 
consin to  receive  the  mandates  from  the  Supreme  Court  of 
the  United  States  reversing  and  remanding  the  causes  for 
further  proceedings,  that  the  foregoing  opinion  of  Chief 
Justice  Dixon  was  delivered. 

At  the  time  of  that  opinion  Chief  Justice  Dixon,  and 
Justices  Cole  and  Paine,  associates,  constituted  the  court. 
Mr.  Justice  Paine  had  been  of  counsel  for  Booth  in  all 
the  cases  and  therefore  took  no  part  in  the  decision.  Mr. 
Justice  Cole  adhered  to  the  previous  decision  of  the  court 
and  voted  not  to  receive  the  mandamus.  The  court  being 
thus  evenly  divided,  the  mandates  were  not  received. 

After  the  decision  of  the  Supreme  Court  of  the  United 
States  above  referred  to  and  on  the  first  day  of  March, 
1860,  Booth  was  re-arrested  and  imprisoned  in  the  Cus- 
tom-House  in  Milwaukee,  by  an  order  of  the  Hon.  A.  G. 
Miller,  United  States  District  Judge  for  the  District  of 
Wisconsin. 

On  the  6th  day  of  March,  1860,  Booth  again  applied  to 
the  Supreme  Court  of  Wisconsin  to  release  him  from  such 
imprisonment.  On  this  application  Chief  Justice  Dixon 
and  Mr.  Justice  Cole  adhering  to  their  former  views,  and 
Mr.  Justice  Paine  taking  no  part,  the  application  was  de- 
nied upon  this  division  of  the  court.  Upon  this  applica- 
tion Mr.  Justice  Dixon  delivered  an  oral  opinion,  in  which, 
among  other  things,  he  said :  "If  this  was  an  entirely  new 
question  (the  constitutionality  of  the  Fugitive  Slave  Law), 
if  it  had  not  been,  as  I  think,  constitutionally  adjudicated 
by  the  tribunals  of  the  highest  authority,  I  should  unhesi- 


Opinions  of  Chief  Justice  Dixon.  100 

tatingly  decide  the  act  unconstitutional.  The  arguments 
against  it  made  by  this  court  and  elsewhere,  are,  to  my 
mind,  as  matters  of  logic,  almost  conclusive.  But  the  sub- 
ject of  the  rendition  of  fugitives  was  legislated  upon  by 
Congress  at  a  very  early  day.  The  authority  of  Congress 
to  do  so  has  ever  since  been  recognized  by  every  department 
of  the  government,  and  by  nearly  all  the  States.  The  Su- 
preme Court  of  the  United  States  has  frequently  adjudged 
that  Congress  has  that  power,  and  it  is  too  late  now  to  ques- 
tion it.  We  must  be  bound  by  it,  as  if  it  were  part  of  the 
letter  of  the  Constitution." 

After  serving  a  part  of  the  month's  imprisonment,  for 
which  he  was  sentenced,  Booth  was  pardoned  by  President 
Buchanan. 

Garland,  the  owner  of  the  fugitive  slave,  Glover,  after- 
wards sued  Booth  in  the  United  States  Court  for  the  Dis- 
trict of  Wisconsin,  for  damages  arising  out  of  the  rescue, 
and  recovered  a  judgment  for  damages,  which  the  Wiscon- 
sin Supreme  Court  upheld  as  a  good  defense  to  an  action 
of  replevin  brought  against  one  who  had  purchased  at  a  sale 
on  an  execution  issued  upon  such  judgment.  Arnold  v. 
Booth,  14  Wis.  180.) 

The  Wisconsin  Supreme  Court  had  previously  decided 
in  1855  in  the  case  of  Bagnall  v.  Ableman  (4  Wis.  163), 
that  a  United  States  Marshal  was  liable  for  the  penalty 
provided  by  the  Wisconsin  Statute  for  a  re-arrest  after  a 
discharge  on  habeas  corpus,  where  it  appeared  that  the 
Marshal  had  re-arrested  the  person  discharged  by  a  County 
Judge  on  habeas  corpus  from  imprisonment  under  a  war- 
rant issued  by  a  District  Judge  of  the  United  States. 

The  Supreme  Court  of  Wisconsin  later  asserted  its  ju- 
risdiction to  inquire  by  habeas  corpus  into  the  cause  of 
detention  of  a  soldier  held  by  the  United  States  officers  and 
to  discharge  him  if  illegally  held.  (In  re  Tarbell,  25  Wis. 
390.)  Dixon,  Chief  Justice,  dissented  from  this  opinion. 
The  case  was  afterwards  reversed  by  the  Supreme  Court  of 
the  United  States  (Tarbell's  Case,  13  Wall.  397).  At 
about  the  same  time  the  Wisconsin  Supreme  Court  held 
that  so  much  of  the  Act  of  March  2,  1867,  as  gave  the 


101  Note  to  Abkman  v.  Booth. 

plaintiff  the  right  to  remove  an  action  from  the  State  to 
the  Federal  Court  was  invalid,  and  denied  the  plaintiff  the 
right  to  remove  his  cause  into  the  Federal  Court.  Dixon, 
Chief  Justice,  dissented  in  this  case.  (Whiton  v.  Chicago 
&  Xorth western  Kailway  Company,  25  Wis.  424.)  This 
case  was  overruled  by  the  Supreme  Court  of  the  United 
States  (13  Wall.  270). 


Opinions  of  Chief  Justice  Dixon.  102 


The  Town  of  Milwaukee  v.  The  City  of  Milwaukee. 

June  Term,  1860. 
(12  Wis.  93.) 

The  facts   of   this   case   sufficiently   appear   from  the 
opinion. 

The  following  are  the  propositions  of  law  decided : 

The  legislature  has  not  the  power,  either  directly  or  in- 
directly, to  divest  a  municipal  corporation  of  its  pri- 
vate property,  without  the  consent  of  its  inhabitants. 

The  legislature,  however,  has  an  undoubted  right  to 
change  the  territorial  limits  of  municipal  corpora- 
tions, and  to  detach  from  a  town  a  portion  of  its  ter- 
ritory and  annex  it  to  another  town ;  and,  in  so  doing, 
may  provide  for  an  equitable  division  of  the  common 
property. 

Where  the  legislature  takes  from  a  town  a  portion  of  its 
territory,  which  includes  land  to  which  it  has  the  ex- 
clusive title,  and  annexes  the  same  to  another  town  or 
municipality,  without  providing  for-  the  disposal  of 
such  land,  under  such  circumstances  that  the  assent 
of  the  town  to  part  with  its  title  cannot  be  presumed, 
such  town  still  continues  to  be  the  owner  of  such  land, 
notwithstanding  such  separation. 

By  an  act  of  the  territorial  legislature,  approved  Janu- 
ary 3rd,  1838,  fractional  townships  7  and  8,  in  Mil- 
waukee county,  were  formed  into  a  town  by  the  name 
,  of  the  town  of  Milwaukee,  and  on  the  14th  of  Jan- 
uary, 1846,  the  supervisors  of  the  town  acquired,  by 
purchase,  a  title  to  the  land  in  controversy,  "in  trust 
for  the  sole  use  and  benefit  of  said  town  forever ;"  the 


103  Town  of  Milwaukee  v.  City  of  Milwaukee. 

territorial  statute,  at  the  time,  giving  to  every  such 
town,  as  a  body  corporate,  the  power  to  hold  real  es- 
tate for  the  public  uses  of  its  inhabitants,  and  convey 
or  dispose  of  the  same  as  might  be  deemed  conducive 
to  their  interests,  and  providing,  also,  in  case  of  the 
division  of  a  town,  or  annexation  of  a  part  thereof  to 
another  town,  for  an  equitable  partition  of  such  real 
estate,  or  apportionment  of  its  proceeds,  by  the  su- 
pervisors of  the  respective  towns.  The  provision  for 
the  apportionment  of  property  in  case  of  the  division 
of  towns,  ceased  to  be  in  force  from  and  after  the  1st 
day  of  May,  1849.  On  the  31st  of  January,  1838,  a 
portion  of  town  7  was  incorporated  as  the  village  of 
Milwaukee,  but  the  government  of  the  town  of  Mil- 
waukee continued  over  both  fractional  towns,  until 
January  31st,  1846,  when  the  charter  of  the  city  of 
Milwaukee  put  an  end  to  the  government  of  the  town 
of  Milwaukee,  in  the  territory  embraced  in  the  city 
limits,  and  the  land  in  controversy  continued  to  be 
within  the  town  of  Milwaukee  until  February,  1852, 
when  the  limits  of  the  city  of  Milwaukee  were  en- 
larged by  an  act  of  the  legislature,  so  as  to  include 
said  land ;  none  of  said  acts  making  any  provision  for 
the  division  or  apportionment  of  the  common  prop- 
erty: Held,  that  the  act  extending  the  limits  of  the 
city  of  Milwaukee  over  the  land  in  question,  did  not 
divest  the  town  of  its  title  thereto. 

Dixon,  Chief  Justice.  This  is  an  action  of  ejectment 
commenced  in  the  circuit  court  of  Milwaukee  county,  by 
the  town  against  the  city,  to  recover  possession  of  forty 
acres  of  land,  situate  within  the  present  limits  of  the 
city.  The  town  was  organized  by  act  of  the  legislature  of 


Opinions  of  Chief  Justice  Dixon.  104 

the  territory  of  Wisconsin,  approved  January  3rd,  1838. 
On  the  31st  of  January,  1846,  a  portion  of  the  town  was 
set  off  and  incorporated  into  the  city.  On  the  14th  of  Jan- 
uary, 1846,  the  supervisors  of  the  town,  "in  trust  for  the 
sole  use  and  benefit  of  said  town  forever,"  acquired,  by 
purchase  from  James  Murray  and  wife,  a  title  in  fee  sim- 
ple to  the  land  in  question.  The  conveyance  was  executed 
to  the  supervisors  by  name,  as  such,  and  their  successors  in 
office.  On  the  trial,  the  conveyance  from  Murray  to  the 
supervisors  was  produced  and  proved,  and  a  regular  chain 
of  title  from  the  government  to  Murray  traced  and  estab- 
lished. It  was  admitted  that  the  defendant,  the  city,  was 
in  possession.  At  the  time  the  land  was  thus  acquired  by 
the  town,  it  lay  within  its  limits,  and  so  continued  until 
the  20th  of  February,  1852,  when,  by  an  act  passed  by  the 
legislature  of  the  State  of  Wisconsin,  "an  act  to  consoli- 
date and  amend  the  act  to  incorporate  the  city  of  Milwau- 
kee, and  the  several  acts  amendatory  thereof,"  the  limits 
of  the  city  were  extended  so  as  to  bring  it  within  them.  In 
the  original  act  of  the  territorial  legislature,  incorporating 
the  city,  and  the  subsequent  act  of  the  legislature  of  the 
State,  amending  and  consolidating  the  same,  and  the 
amendments  thereto,  no  provision  whatever  was  made  re- 
specting the  partition  or  division  of  the  common  property. 
No  mention  whatever  was  made  of  it,  because  no  such  pro- 
vision was  made  by  the  legislature,  and  because  towns  are 
not  authorized  to  hold  land  outside  of  their  boundaries,  the 
counsel  for  the  city  moved  for  a  judgment  of  nonsuit  in 
the  action,  which  was  granted.  From  this  judgment  the 
present  appeal  is  taken. 

The  grounds  taken  by  the  counsel  for  the  defendant  to 
sustain  in  this  court  the  judgment  at  the  circuit,  are  the 
same  as  those  there  urged  upon  the  motion  for  a  nonsuit. 


105  Town  of  Milwaukee  v.  City  of  Milwaukee. 

In  support  of  them,  he  cites  the  cases  of  Denton  v.  Jackson, 
2  John  Ch.  E.  320;  North  Hemstead  v.  Hempstead, 
Hopk.  288 ;  the  same  case  in  the  court  of  errors,  2  Wend. 
109,  and  Medford  v.  Pratt,  4  Pick.  222.  In  order  to  de- 
termine whether  those  cases  sustain  the  action  had  in  this, 
it  will  be  necessary  briefly  to  examine  them.  But  before 
doing  so  it  will  be  well  to  notice  the  provisions  of  the  ter- 
ritorial statutes  in  force  at  the  time  the  town  of  Milwau- 
kee acquired  the  land  in  question,  touching  the  corporate 
character  of  the  several  towns  then  in  existence  in  the  ter- 
ritory, and  their  capacity  and  power  to  acquire,  hold  and 
pass  the  title  to  real  estate. 

By  section  1  of  chapter  2,  part  1st,  of  an  act  to  provide 
for  the  government  of  the  several  towns  in  the  territory,  and 
for  the  revision  of  county  government,  approved  February 
18th,  1841,  it  was  enacted,  that  every  town  then  estab- 
lished, or  which  might  thereafter  be  established  by  the  leg- 
islative assembly  of  the  territory,  should  be  a  body  corpo- 
rate, and  have  capacity :  1.  To  sue  and  be  sued  in  the  man- 
ner prescribed  by  law.  2.  To  hold  real  estate  for  the  pub- 
lic uses  of  the  inhabitants,  and  to  convey  the  same,  either 
by  a  vote  of  the  inhabitants  or  by  a  deed  of  their  commit- 
tee or  agents.  3.  To  hold  personal  estate  for  the  public 
uses  of  its  inhabitants,  and  to  alienate  or  dispose  of  the 
same,  either  by  vote  or  otherwise.  4.  To  hold  real  and 
personal  estate  in  trust,  for  the  support  of  schools,  and  for 
the  promotion  of  education  within  the  limits  of  the  town. 
5.  To  make  such  contracts  as  may  be  necessary  to  the  exer- 
cise of  its  corporate  or  administrative  powers.  6.  To  make 
such  orders  for  the  disposition,  regulation  or  use  of  its  cor- 
porate property,  as  may  be  deemed  conducive  to  the  inter-' 
ests  of  its  inhabitants. 

The  third  section  of  the  same  chapter  provided  that 


Opinions  of  Chief  Justice  Dixon. 

all  acts  or  proceedings  by  or  against  a  town,  in  its  corpo- 
rate capacity,  should  be  in  the  name  of  such  town,  but 
every  conveyance  of  lands  within  the  limits  of  such  town, 
made  in  any  manner  for  the  use  or  benefit  of  its  inhabit- 
ants, should  have  the  same  effect  as  if  made  to  the  town 
by  name.  These  provisions  being  in  force  at  the  time  the 
conveyance  was  made  to  the  supervisors,  comment  upon 
them  is  unnecessary,  for  the  purpose  of  showing  not  only 
that  they  were  enabled  to  receive  it,  but  that  immediately 
upon  its  execution  and  delivery,  for  the  uses  therein  speci- 
fied, the  title  vested  absolutely  and  entirely  in  the  town, 
and  that  thereafter  it  could  sell,  dispose  of  and  convey  the 
same,  as  its  own  free  will  and  pleasure.  From  the  lan- 
guage of  the  third  section  above  quoted,  it  may  reasonably 
be  implied,  that  it  was  the  intention  of  the  territorial  leg- 
islature that  the  lands  which  towns  were  empowered  to 
acquire,  hold  and  dispose  of,  were  to  be  situated  within 
their  corporate  limits.  Such  intention  is  more  plainly 
manifested  by  the  first  three  sections  of  the  second  part  of 
the  same  chapter,  which  immediately  succeed  those  re- 
ferred to.  The  first  section  provided  that  where  a  town 
seized  of  lands  should  be  divided  into  two  or  more  towns, 
the  supervisors  of  the  several  towns  constituted  by  such 
division  should  meet  as  soon  as  might  be,  after  the  first 
town  meeting  subsequently  held  in  such  towns,  and,  when 
so  met,  should  have  power  to  make  such  agreement  con- 
cerning the  disposition  to  be  made  of  such  town  lands,  and 
the  apportionment  of  the  proceeds,  as  they  should  think 
equitable,  and  to  take  all  measures,  and  execute  all  convey- 
ances which  might  be  necessary  to  carry  such  agreement 
into  effect. 

The  second  section  provided,  that  when  any  such  town 
should  be  altered  in  its  limits,  by  the  annexing  of  a  part  of 


107  Town  of  Milwaukee  v.  City  of  Milwaukee. 

its  territory  to  another  town  or  towns,  the  supervisors  of 
the  town  from  which  said  territory  should  be  taken,  and 
of  the  town  or  towns  to  which  the  same  should  be  annexed, 
should,  as  soon  as  might  be  after  such  alteration,  meet  for 
the  purpose,  and  possess  the  same  power  as  provided  in  the 
first  section.  By  the  third  section  it  was  enacted,  that  if 
no  agreement  for  the  disposition  of  such  lands  should  be 
made  within  six  months  after  such  division  or  alteration, 
then  the  supervisors  of  each  town,  in  which  any  portions 
of  such  lands  should  lie,  should  proceed  to  sell  and  convey 
such  part  of  said  lands  as  should  be  included  within  the 
limits  of  said  town,  as  fixed  by  the  division  or  alteration, 
and  that  the  proceeds  should  be  apportioned  between  the 
several  towns  interested  therein,  according  to  the  amount 
of  taxable  property  in  the  town  so  divided  or  altered,  as  the 
same  existed  immediately  before  such  division  or  altera- 
tion, to  be  ascertained  by  the  last  assessment  list  of  such 
town.  This  act  was  not  in  force  at  the  time  of  the  amend- 
ment and  consolidation  of  the  charter,  and  the  extension 
of  the  corporate  limits  of  the  city  of  Milwaukee,  by  the 
act  of  February  20th,  1852.  It  was  repealed  and  ceased  to 
be  in  force,  from  and  after  the  first  day  of  May,  1849  (Re- 
vised Statutes,  1849,  chap.  156,  sec.  4),  and,  consequently, 
the  last  three  sections  above  referred  to,  have  no  bearing 
upon  the  subsequent  legislation  of  the  State,  or  upon  this 
case,  only  so  far  as  they  go  to  show  the  intention  of  the 
territorial  legislature  to  limit  the  power  of  towns  in  ac- 
quiring real  estate  to  such  as  should  be  wdthin  their  bound- 
aries, and  so  far,  furthermore,  as  they  establish  an  assur- 
ance and  pledge  of  public  faith  on  the  part  of  the  terri- 
torial government,  that  no  future  division  or  dismember- 
ment of  any  town  should  operate  to  destroy  or  divest  the 
rights  and  interests  of  its  inhabitants  in  and  to  any  lands- 


Opinions  of  Chief  Justice  Dixon.  108 

which  it  had  once  lawfully  acquired.  The  formation  of 
our  State  government  in  no  way  affected  the  condition  of 
either  the  town  or  city.  When  it  came  into  existence,  upon 
the  foundation  laid  by  the  territorial  government,  it  found 
and  recognized  them  as  existing  municipal  corporations. 
They  are  so  recognized  in  the  constitution,  and  have  been 
so  treated  in  all  subsequent  legislation.  The  change  from 
territory  to  State  produced  no  change  in  them.  The  corpo- 
ration of  the  town  of  Milwaukee  is  to-day  the  same  "arti- 
ficial, invisible,  intangible  being,"  that  it  was  when  first 
organized  in  1838.  Though  it  may  be  more  limited  in  its 
territorial  jurisdiction,  in  the  extent  and  sphere  of  its 
operations  as  a  local  government  it  is  nevertheless  the  same. 
It  was  the  same  in  1852,  when  it  is  said  to  have  lost  the 
land  in  dispute,  that  it  was  in  1846,  when  it  acquired  it. 
So  far  as  all  past  acquisitions  of  property,  real  or  personal, 
were  concerned,  it  existed  the  same  at  both  periods,  and 
still  continues  to  do  so,  with  all  its  faculties  to  hold, 
use  and  dispose  of  the  same,  untouched  and  unimpaired. 
Under  these  circumstances,  the  present  case  gives  rise  to 
very  important  questions.  Has  the  legislature  the  power, 
under  our  constitution,  and  under  the  constitution  of  the 
United  States,  by  act,  without  its  assent,  to  divest  the  town 
of  its  property,  and  vest  it  in  the  city,  or  any  other  corpo- 
ration or  person?  And,  if  so,  is  the  act  of  severing  and 
withdrawing  the  property  from  the  political  or  territorial 
jurisdiction  of  the  town,  and  annexing  it  to  or  placing  it 
within  that  of  the  city,  an  exercise  of  such  power  ? 

It  will  be  seen  at  once  that  these  are  very  grave  and  per- 
plexing questions.  In  deciding  them,  we  have  endeavored 
to  give  to  them  that  careful  consideration  which  their 
weight  and  importance  deserve.  Questions  of  a  similar 
character  have  involved  courts  of  great  ability  and  learn- 


109  Town  of  Milwaukee  v.  City  of  Milwaukee. 

ing  in  much  doubt  and  anxiety.  We  may,  therefore,  well 
hesitate  and  be  not  too  confident  in  the  correctness  of  our 
judgment.  Within  the  range  of  our  reading  we  know  of 
no  adjudged  case  so  like  the  present  that  we  may  rest  upon 
it  as  a  direct  authority.  We  are  not,  however,  without  ex- 
pressions of  opinion  from  various  learned  courts  and 
judges,  which  tend  directly  to  sustain  the  conclusions  to 
which  we  have  arrived,  whilst  we  know  of  none  of  a  clearly 
opposite  tendency. 

The  operations  of  government  depend  to  a  very  great 
extent,  for  their  success  and  accomplishment,  upon  the  ex- 
istence and  agency  of  municipal  corporations,  such  as  coun- 
ties, towns,  cities  and  villages.  Without  the  delegation  of 
a  portion  of  its  powers  to  them,  its  ends  and  objects  could 
not  be  attained.  The  purposes  for  which  they  are  insti- 
tuted, namely,  the  cheap,  expeditious,  and  convenient  pro- 
motion and  preservation  of  good  order  and  good  govern- 
ment, demand  that  they  should  at  all  times  be  subject  to 
legislative  modification  and  control,  in  order  that  they  may 
be  varied  with  the  ever  varying  condition  of  the  country, 
and  circumstances,  habits  and  wants  of  the  people.  It  is 
the  apparent  connection  which  these  questions  have  with 
the  exercise  of  this  legislative  power  and  discretion,  that 
renders  their  decision  perplexing  and  difficult.  We  would 
not  unwisely  or  unnecessarily  embarrass  its  exercise  or  im- 
pair its  usefulness.  Nevertheless,  if  by  virtue  of  the  pro- 
visions of  our  own  constitution,  or  of  the  constitution  of  the 
United  States,  the  legislature  is  prohibited  from  divesting 
or  attempting  to  divest,  without  its  assent,  a  municipal  cor- 
poration of  its  rights  of  property  lawfully  acquired,  it  is 
plainly  our  duty  so  to  declare.  We  think  under  the  cir- 
cumstances of  the  present  case,  the  legislature  had  no  such 
power.  There  are  those  who,  independently  of  constitu- 


Opinions  of  Chief  Justice  Dixon.  110 

tional  restrictions,  and  upon  general  principles,  and  on  the 
reason  and  nature  of  things,  hold  that  legislative  bodies 
have  no  such  authority,  and  that  such  a  proceeding  would 
not  be  an  act  of  legislation,  but  an  act  of  lawless  violence. 
See  opinion  of  Mr.  Justice  Johnson,  Fletcher  v.  Peck,  6 
Cranch,  143 :  The  constitutions,  State  and  federal,  fur- 
nish ample  guards  against  such  abuses,  without  resorting 
to  such  general  principles. 

Within  the  principles  which  we  have  above  stated,  the 
power  of  the  legislature  to  enlarge,  restrict,  change,  modify, 
control  and  repeal  all  merely  public  corporations,  is  un- 
doubted. They  are  established  as  a  part  of  the  police  of 
the  State  and  to  meet  the  object  of  their  creation,  must  be 
subject  to  such  changes  as  the  exigencies  of  the  times  re- 
quire. Hence  the  power  of  the  legislature  to  enlarge  the 
limits  of  the  city  of  Milwaukee  so  as  to  embrace  within 
them  the  land  in  question,  and  subject  it  and  those  who 
occupied  it,  to  the  "jurisdiction  and  government  of  the  city, 
cannot  be  questioned.  All  persons  residing  within  the 
limits  of  such  corporations  are  obliged  to  be  its  members, 
and  to  submit  to  the  duties  imposed  by  law.  All  persons 
holding  or  owning  property  within  them  are,  as  to  it, 
bound  to  the  same,  rule  of  submission. 

The  difficulty  about  the  question  is,  to  distinguish  be- 
tween the  corporation  as  a  civil  institution  or  delegation  of 
merely  political  power,  and  as  an  ideal  being  endowed  with 
the  capacity  to  acquire  and  hold  property  for  corporate  or 
other  purposes.  In  its  political  or  governmental  capacity, 
it  is  liable  at  any  time  to  be  changed,  modified  or  destroyed 
by  the  legislature ;  but  in  its  capacity  of  owner  of  property, 
designed  for  its  own,  or  the  exclusive  use  and  benefit  of  its 
inhabitants,  its  vested  rights  of  property  are  no  more  the 
subject  of  legislative  interference  or  control,  without  the 


Ill  Town  of  Milwaukee  v.  City  of  Milwaukee. 

consent  of  the  corporators,  than  those  of  a  merely  private 
corporation  or  person.  Its  rights  of  property,  once  ac- 
quired, though  designed  and  used  to  aid  it  in  the  discharge 
of  its  duties  as  a  local  government,  are  entirely  distinct  and 
separate  from  its  powers  as  a  political  or  municipal  body. 
It  might  sell  its  property,  or  the  same  might  be  lost  or  de- 
stroyed, and  yet  its  powers  of  government  would  remain. 
In  its  character  of  a  political  power,  or  local  subdivision 
of  government,  it  is  a  public  corporation,  but  in  its  char- 
acter of  owner  of  property,  it  is  a  private  corporation,  pos- 
sessing the  same  rights,  duties  and  privileges  as  any  other. 
This  distinction  is  clearly  laid  down  and  established  in  the 
case  of  Bailey  and  others  v.  The  Mayor,  etc.,  of  the  City  of 
Xew  York,  3  Hill,  531,  and  authorities  there  cited.  The 
inviolability  by  legislative  interposition  of  the  rights  and 
franchises  of  a  private  corporation,  in  cases  where  there  is 
not,  by  its  charter,  or  the  constitution  of  the  State  by  which 
it  is  granted,  a  reservation  of  power  to  repeal  or  modify,  is 
demonstrated  and  established  in  the  case  of  Dartmouth 
College  v.  Woodward,  4  Wheat.  518,  by  a  force  of  reason- 
ing and  power  of  argument,  to  the  strength  and  clearness 
of  which  nothing  can  possibly  be  added.  It  was  there  held 
that  the  charter  of  such  a  corporation  was  a  contract  with- 
in the  meaning  of  the  first  subdivision  of  section  10  of  arti- 
cle I  of  the  Constitution  of  the  United  States,  which  de- 
clares that  no  State  shall  pass  any  law  impairing  the  obli- 
gation of  contracts.  The  same  provision  occurs  in  the 
12th  section  of  the  first  article  of  our  State  constitution. 
The  reasoning  of  that  case  extends  as  well  to  the  power  of 
the  legislature  to  interfere  with  the  franchises  as  the  rights 
of  property  of  such  corporation;  but  it  is  only  with  re- 
spect to  the  latter  that  it  can  be  considered  applicable  to  the 
question  we  are  now  considering.  And  there  it  is  clearly 


Opinions  of  Chief  Justice  Dixon.  112 

so.  Every  argument  used  goes  with  equal  force  to  prove 
that  the  legislature  has  no  power  to  divest  a  municipal  cor- 
poration of  its  property,  previously  acquired  by  purchase 
or  otherwise.  This  want  of  power  depends,  not  upon  the 
character  of  the  corporation,  but  upon  the  nature  of  the 
right.  The  right  to  repeal  or  modify  is  not  a  right  to  in- 
terfere with  vested  rights  of  property.  The  former  may 
exist  without  the  latter.  If  the  legislature  possessed  both, 
the  exercise  of  one  would  not  depend  on  the  other.  How 
the  total  repeal  of  the  charter  of  a  municipal  corporation, 
without  provision  as  to  the  disposition  of  its  property  (a 
circumstance  not  likely  to  occur),  would  affect  such  prop- 
erty, or  the  rights  of  its  inhabitants,  we  are  not  called  upon 
here  to  decide.  It  is  sufficient  that  the  corporation  of  the 
town  of  Milwaukee  still  continues  to  exist,  and  so  long  as 
it  does  so,  it  is  impossible  to  make  a  distinction  between 
its  rights  of  property  and  those  of  a  corporation  merely  pri- 
vate. Both  are,  and  ought,  in  the  nature  of  the  things,  to 
be  equally  sacred.  In  Terrett  v.  Taylor,  9  Cranch,  43,  the 
right  of  a  State  government  to  dispossess  a  private  corpora- 
tion of  its  property,  was  directly  passed  upon  and  denied. 
In  the  cases  of  Fletcher  v.  Peck,  6  Cranch,  87,  and 
Pawlet  v.  Clark,  9  id.  292,  it  was  held  that  grants  of  lands 
by  States  to  individuals  or  corporations,  were  contracts 
within  the  foregoing  provision  of  the  constitution,  and  that 
the  grantees  were  thereby  protected  from  molestation  by 
subsequent  legislation  on  the  part  of  such  States.  If  the 
legislature,  in  the  present  instance,  without  the  assent  of 
the  town,  had  attempted,  by  act,  directly  to  transfer  the 
lands  in  question  from  it  to  the  city,  or  to  declare  the  con- 
veyance from  Murray  to  the  supervisors  void,  or  to  assert 
that  the  title  of  the  town  was  forfeited,  and  that  the  same 
was  vested  in  the  State,  could  any  lawyer  be  found  who 


113  Town  of  Milwaukee  v.  City  of  Milwaukee. 

would  hesitate  for  one  moment  to  give  his  opinion  that 
such  legislation  was  void  ?  And  could  the  legislature,  by  in- 
direct means,  accomplish  that  which  it  was  impossible  to 
do  by  direct  ?  Did  it  possess  this  power  as  an  incident  to 
that  of  enlarging  the  limits  of  the  city  or  diminishing  those 
of  the  town  ?  We  think  not.  The  only  grounds  upon  which 
such  a  pretense  could  be  justified  are  that  the  property  of 
the  town  is  the  property  of  the  State,  and  therefore  subject 
to  its  disposal,  which  needs  no  argument  to  refute ;  or  that 
the  separation  destroyed  the  use,  which  carried  with  it  the 
right.,  and  that  the  city  would  seize  and  occupy  the  land  as 
a  sort  of  waif,  until  the  true  owner  could  be  let  in.  We 
cannot  admit  that  the  loss  of  the  use  carries  with  it  the 
right.  Under  certain  circumstances,  as  in  the  case  of  land 
purchased  and  used  as  a  highway,  which  is  not  designed 
for,  or  devoted  to,  the  exclusive  use  of  the  inhabitants  of 
the  town,  but  is  common  to  all  the  people  of  the  State,  it 
might.  In  such  case,  the  exclusive  title  of  the  town,  if  it 
may  be  said  to  have  ever  had  any,  might  be  considered  at 
an  end,  for  its  continuance  would  be  inconsistent  with  the- 
general  supervision  which  the  officers  of  every  town  have, 
by  statute,  over  the  highways  within  their  limits.  But  sup- 
pose a  town  house,  prepared  and  erected  by  the  inhabitants 
for  the  transaction  of  its  public  business,  and  the  preserva- 
tion of  its  records,  should,  without  provision  as  to  its  dis- 
position, be  set  off  into  an  adjoining  town,  would  the  town 
thereby  lose  its  right  of  property?  Although  it  would 
thereby  be  prevented  from  using  it  for  the  transaction  of 
business,  which  must  be  done  within  its  limits,  yet  might 
it  not  sell  it,  and  with  the  proceeds  provide  another  ?  It  is- 
not,  however,  every  severance  of  real  property  from  the- 
political  jurisdiction  of  the  municipal  corporation  to  which 
it  belongs,  that  involves  a  destruction  of  its  use.  By  thp 


Opinions  of  Chief  Justice  Dixon.  114 

second  section  of  the  third  part  of  the  fifth  chapter  of  the 
act  of  the  territorial  legislature,  to  which  we  have  above 
referred,  it  was  made  the  duty  of  the  supervisors  of  the 
several  towns  of  the  territory,  to  take  charge  of,  and  pro- 
vide for,  the  support  of  the  poor  within  them,  agreeably  to 
the  provisions  of  the  law.  In  the  discharge  of  this  duty, 
there  can  be  no  doubt  that  the  town  could  provide  itself 
with  houses  and  lands,  suitable  for  the  protection,  exer- 
cise, and  employment  of  such  paupers.  And  if  it  should, 
the  separation  of  such  house  and  lands  would  not  be  incon- 
sistent with  the  continued  use  by  the  town.  Under  such 
circumstances  the  use  might  be  less  convenient,  but  it  would 
not  be  impossible.  As  the  record  in  the  present  case  does 
not  disclose  for  what  purpose  the  town  owned  and  occupied 
the  land  in  question,  it  is  impossible  for  us  to  say  that  its 
annexation  to  the  city  interfered  with  its  use  by  the  town. 
If  the  legislature  could,  by  virtue  of  its  power  of  division 
or  repeal,  deprive  a  town  of  its  property ;  and  if,  after  hav- 
ing created  it  and  incited  it  to  such  acquisitions,  by  giving 
it  the  capacity,  it  should  do  so,  such  proceeding  would  be, 
in  the  highest  degree,  arbitrary  and  indefensible.  The 
perfidy  of  such  an  act  would  be  acknowledged  by  all  men. 
We  do  not,  however,  wish  to  be  understood  as  saying  that 
the  legislature  may  not,  upon  the  repeal  of  the  charter  of 
a  municipal  corporation,  or  a  division  of  its  territory,  pro- 
vide for  a  fair  and  equitable  disposition  or  division  of  its 
public  property.  It  may,  undoubtedly,  do  so.  And  ordi- 
narily, when  such  provision  is  made,  the  assent  of  the  cor- 
porations or  inhabitants,  is  to  be  presumed.  For,  gener- 
ally, it  is  not  to  be  supposed  that  such  acts  would  be  passed 
.against  their  wishes  and  interests,  but  that  they  are  enacted 
,at  their  request,  and  for  their  good.  But  where,  as  in  this 
case,  a  small  portion  only  of  such  corporation,  in  which  it 


115  Town  of  Milwaukee  v.  City  of  Milwaukee. 

has  a  valuable  real  estate  interest,  is  set  off  and  annexed 
to  an  adjoining  corporation,  and  where,  as  here,  it  early 
asserts  its  claim  to  such  real  estate,  and  no  provision  is 
made  in  the  law  concerning  the  same,  we  do  not  think  any 
such  assent  or  request  can  be  presumed.  And  particularly 
do  we  think  this  to  be  so,  where,  as  here,  no  advantage  is 
gained  to  the  divided  corporation  from  such  division.  The 
consideration  of  an  advantage  gained,  often  affords  the 
strongest  ground  for  the  presumption  of  assent.  Where, 
therefore,  the  legislature  takes  from  a  town  a  portion  of 
its  territory,  which  includes  lands  to  which  it  has  the  ex- 
clusive title,  and  annexes  the  same  to  another  town  or  mu- 
nicipality, without  providing  for  the  disposal  of  such 
lands,  and  under  such  circumstances  that  the  assent  of  the 
town  to  part  with  its  title  cannot  be  presumed,  such  town 
still  continues  to  be  the  owner  of  such  lands,  notwithstand- 
ing such  separation.  The  rule  of  law  upon  this  subject  is 
well  stated  by  Chief  Justice  Parsons,  in  the  case  of  The 
Inhabitants  of  Windham  v.  The  Inhabitants  of  Portland, 
4  Mass.  384.  He  says:  "A  town  incorporated  may  acquire 
property,  real  or  personal;  it  enjoys  corporate  rights  and 
privileges,  and  is  subject  to  obligations  and  duties.  If  a 
part  of  its  territory  and  inhabitants  are  separated  from  it 
by  annexation  to  another,  or  by  the  erection  of  a  new  cor- 
poration, the  former  corporation  still  retains  all  its  prop- 
erty, powers,  rights  and  privileges,  and  remains  subject  to 
all  its  obligations  and  duties,  unless  some  new  provision 
be  made  by  the  act  authorizing  the  separation.  Thus  it 
would  continue  seized  of  all  its  lands,  possessed  of  all  its 
property,  entitled  to  all  its  rights  of  action,  bound  by  all 
its  contracts,  and  subject  to  all  its  duties."  This  doctrine 
is  sustained  by  the  case  of  Medford  v.  Pratt,  4  Pick.  222, 
cited  by  the  counsel  for  the  defendant  It  was  there  held, 


Opinions  of  Chief  Justice  Dixon. 

that  a  meeting-house  for  public  worship,  built  by  a  town 
before  its  division  into  parishes  becomes,  upon  such  di- 
vision, the  exclusive  property  of  the  first  parish.  It  has 
always  been  held  in  that  State,  that  upon  the  division  of 
towns  (which  were  parochial  as  well  as  municipal  in  their 
character,  each  town  constituting,  originally,  a  single  par- 
ish) into  two  or  more  parishes,  the  parochial  property,  un- 
less special  provision  was  made,,  went  to  the  first  parish,, 
that  is,  that  portion  of  the  town  remaining  after  the  erec- 
tion of  the  new  parish  or  parishes,  as  the  original,  or  rep- 
resentative of  the  original  parish.  On  this  subject  the 
court,  in  their  opinion  in  that  case,  say:  "The  justice  of 
this  principle  cannot  be  denied ;  for  the  remnant  were  dis- 
charged of  no  part  of  their  duties  or  burdens,  and  the  se- 
ceders  always  voluntarily  withdrew,  carrying  with  them  a 
great  part  of  the  taxable  property  from  which  those  duties 
and  burdens  were  before  discharged."  The  same  prin- 
ciples are  recognized  in  the  cases  of  Brunswick  v.  Dunning, 
7  Mass.  445 ;  and  Hampshire  v.  Franklin,  16  id.  76,  and 
many  others  in  that  State. 

Upon  the  want  of  power  in  the  legislature  of  a  State  to 
deprive  a  municipal  corporation  of  its  right  of  private 
property,  Mr.  Justice  Story,  in  delivering  the  opinion  of 
the  court  in  the  case  of  Terrett  v.  Taylor,  supra,  says :  "In 
respect,  also,  of  public  corporations  which  exist  only  for 
public  purposes,  such  as  counties,  towns,  cities,  etc.,  the 
legislature  may,  under  proper  limitations,  have  a  right  to 
change,  modify,  enlarge  or  restrain  them,  securing,  how- 
ever, the  property  for  the  uses  of  those  for  whom,  and  at 
whose  expense  it  was  originally  purchased." 

And  again,  the  same  learned  judge,  in  delivering  his 
opinion  in  the  case  of  Dartmouth  College  v.  Woodward,  at 
page  694,  says :  "It  may  also  be  admitted  that  corporations- 


117  Town  of  Milwaukee  v.  City  of  Milwaukee. 

for  mere  public  government,  such  as  towns,  cities  and  coun- 
ties, may,  in  many  respects,  be  subject  to  legislative  con- 
trol. But  it  will  hardly  be  contended,  that  in  respect  to 
such  corporation,  the  legislative  power  is  so  transcendent 
that  it  may,  at  its  will,  take  away  the  private  property  of 
such  corporation,  or  change  the  use  of  its  private  funds, 
acquired  under  the  public  faith.  Can  the  legislature  con- 
fiscate to  its  own  use  the  private  funds  which  a  municipal 
corporation  holds  under  its  charter  without  any  default  or 
consent  of  the  corporators?  If  a  municipal  corporation 
be  capable  of  holding  devises  and  legacies  to  charitable 
uses  (as  many  municipal  corporations  are),  does  the  leg- 
islature, under  our  forms  of  limited  government,  possess 
the  authority  to  seize  upon  those  funds,  and  appropriate 
them  to  other  uses,  at  its  own  arbitrary  pleasure,  against 
the  will  of  the  donors  and  donees  ?  From  the  very  nature 
of  our  government,  the  public  faith  is  pledged  the  other 
way ;  and  that  pledge  constitutes  a  valid  compact ;  and  that 
compact  is  subject  only  to  judicial  inquiry,  construction 
and  abrogation.  This  court  have  already  had  occasion,  in 
other  cases,  to  express  their  opinion  on  this  subject;  and 
there  is  not  the  slightest -inclination  to  retract  it."  At 
page  668  of  the  same  case  he  also  says :  "Public  corpora- 
tions are  generally  esteemed  such  as  exist  for  public  pur- 
poses only,  such  as  towns,  cities,  parishes  and  counties,  and 
in  many  respects  they  are  so,  although  they  involve  some 
private  interests ;  but  strictly  speaking,  public  corporations 
are  such  only  as  are  founded  by  the  government  for  public 
purposes,  where  the  whole  interests  belong  also  to  the  gov- 
ernment." The  same  doctrine  is  established  with  refer- 
ence to  municipal  corporations,  by  the  supreme  court  of 
Massachusetts,  in  the  case  of  Hampshire  v.  Franklin, 
supra,  where  an  act  of  the  legislature  of  that  State,  which 


Opinions  of  Chief  Justice  Dixon.  118 

directed  the  payment  of  one  county  to  another  of  a  sum  of 
money  supposed  to  be  equitably  due,  but  for  the  payment 
of  which  there  existed  no  legal  obligation,  was  held  uncon- 
stitutional and  void.  The  court  say:  "It  certainly  must 
be  admitted  that,  by  the  principles  of  every  free  govern- 
ment, and  of  our  own  constitution  in  particular,  it  is  not 
in  the  power  of  the  legislature  to  create  a  debt  from  one 
person  to  another,  or  from  one  corporation  to  another,  with- 
out the  consent,  express  or  implied,  of  the  party  to  be 
charged."  See  also  City  of  St.  Louis  v.  Russell,  9  Mo.  503. 
The  most  frequent  instances  of  the  application  of  the 
rule  that  legislatures  cannot  interfere  with  the  rights  of 
property  of  municipal  corporations  are  to  be  found  in  those 
cases  where  such  corporations  hold  property  as  trustees, 
and  for  purposes  other  than  those  which  are  merely  mu- 
nicipal. The  reason  of  this  probably  is,  that  in  such  cases, 
without  the  consent  of  all  persons  interested,  legislatures 
have  no  power  whatever  to  interfere,  and  because  in  the 
division  or  other  change  of  municipal  corporations,  they 
have  almost  invariably  provided  for  the  equitable  distribu- 
tion of  their  property  which  was  strictly  corporate,  there- 
by saving  interested  parties  from  the  necessity  of  calling 
upon  the  courts  for  assistance.  If  in  the  present  case  the 
land  in  question  had  been  acquired  and  held  by  the  town, 
under  the  fourth  subdivision  of  the  section  of  the  terri- 
torial statute  above  quoted,  "in  trust  for  the  support  of 
schools,  and  for  the  promotion  of  education  within  the 
limits  of  the  town,"  it  would  have  been  an  instance  of  such 
special  trust.  The  purposes  for  which  it  would  then  have 
held  the  land,  would  have  been  distinct  from  and  inde- 
pendent of  the  purposes  of  its  creation  as  a  municipal  gov- 
ernment. They  would  have  been  educational  and  not  mu- 
nicipal. In  such  cases,  the  right  of  the  legislature  to  in- 


119  Town  of  Milwaukee  v.  City  of  Milwaukee. 

termeddle  by  dividing  or  diverting  the  fund,  without  the 
consent  of  the  inhabitants,  has  been  often  denied.  From 
some  decisions  it  may  even  be  doubted  whether  the  legisla- 
ture has,  without  such  consent,  the  power  to  repeal  or  de- 
stroy a  municipal  corporation  as  such  trustee,  and  whether 
it  is  not  to  be  treated,  quoad  hoc,  as  a  separate  corporation. 
Thus,  in  the  case  of  Montpelier  v.  East  Montpelier,  27  Vt. 
704,  by  the  charter  of  the  original  town  of  Montpelicr 
there  were  reserved,  among  others,  three  rights  of  land  for 
religious  and  educational  purposes,  which  "together  with 
their  improvements,  rights,  rents,  profits,  dues  and  inter- 
ests," were  to  "remain  inalienably  appropriated  to  the  uses 
and  purposes  for  which  they  were  respectively  assigned, 
and  to  be  under  the  charge,  direction  and  disposal  of  the 
inhabitants  of  said  township  forever."  Subsequently  the 
legislature,  by  act,  abolished  the  old  town,  and  in  its  place 
erected  two  new  towns,  named  respectively  Montpelier  and 
East  Montpelier.  By  the  act  it  was  provided,  that  all 
property  owned  or  possessed  by,  or  debts  or  choses  in  ac- 
tion due  to  the  old  town,  should  thereafter  be  owned  and 
enjoyed  by,  and  collected  for  the  said  towns  of  Montpelier 
and  East  Montpelier,  in  proportion  to  the  grand  list  of  the 
persons  and  property  within  the  territorial  limits  of  said 
towns,  for  the  year  when  said  act  was  passed.  In  a  suit 
by  Montpelier  against  East  Montpelier  (which  latter  had 
obtained  the  whole  of  the  funds  arising  from  the  rents  of 
such  lands  for  the  year  1851,  and  refused  to  pay  over  to 
the  former  any  portion  thereof),  to  recover  its  share  of 
such  funds  in  proportion  to  said  grand  list,  it  was  held  that 
such  trust  funds  were  not  within  the  words  of  the  act,  and 
that  neither  of  said  new  towns  had  any  legal  interest  there- 
in. In  the  opinion,  the  court  refer  to  and  comment  upon 
the  case  of  Dartmouth  College  v.  Woodward,  and  several 


Opinions  of  Chief  Justice  Dixon.  120 

others,  and  say  that  if  the  words  of  the  act  had  extended 
to  these  trust  funds,  it  would,  without  the  assent  of  the  in- 
habitants of  the  old  township,  who  were  to  be  regarded  as 
the  beneficiaries,  or  cestuis  que  trust,  have  been  liable  to 
constitutional  objections.  If  this  be  so,  and  such  assent 
could  not  be  obtained,  it  would  seem  that  the  old  corpora- 
tion, for  the  purpose  of  such  trust,  must  be  still  regarded 
as  in  existence.  For  otherwise  it  is  difficult  to  perceive 
how  the  legislature  might  not  defeat  the  charity,  which  all 
agree  it  cannot  do.  To  the  same  effect  is  the  case  of  the 
Trustees  of  the  New  Gloucester,  School  Fund  v.  Bradbury, 
11  Me.  118,  where  an  act  of  the  legislature  of  Maine,  au- 
thorizing the  town  to  choose  a  new  set  of  trustees,  and  di- 
recting the  first  trustees  to  deliver  over  the  property  to 
them,  was  held  unconstitutional.  The  fund  had  the  effect 
to  reduce  the  amount  raised  by  taxation  for  support  of 
schools  in  the  town,  whose  inhabitants  were  thus  benefi- 
cially interested  in  it,  and  the  case  was  said  to  be  within 
the  very  language  of  the  case  of  Dartmouth  College  v. 
Woodward.  An  attempt  to  distinguish  between  a  munic- 
ipal corporation  and  a  corporation  merely  private,  in  re- 
spect to  such  funds,  was  repudiated. 

The  court  observe  that  Chief  Justice  Marshall,  in  de- 
livering the  opinion  of  the  court  in  that  case,  says: 
"Strictly  speaking,  public  corporations  are  such  only  as 
are  founded  by  the  government,  for  public  purposes,  where 
the  whole  interests  belong  to  the  government;"  and  that 
no  authority  exists  in  the  government  to  regulate,  control 
or  direct  a  corporation  or  its  funds,  "except  where  the  cor- 
poration is  in  the  strictest  sense  public;  "  that  is,  where  its 
whole  interests  and  franchises  are  the  exclusive  property 
and  domain  of  the  government  itself/' 

To  the  same  effect,  likewise,  is  the  case  of  Plymouth  v. 


121  Town  of  Milwaukee  v.  City  of  Milwaukee. 

Jackson,  15  Perm.  St.  44,  where  officers  elected  by  the 
owners  of  land  within  the  original  township  of  Plymouth, 
to  take  charge  of  funds  arising  from  lands  appropriated 
for  the  religious,  literary  and  charitable  uses  of  its  in- 
habitants, which  officers  had,  by  an  act  of  the  legislature, 
been  declared  to  be  a  body  corporate  by  the  name  of  the 
"Proprietors  of  Plymouth,"  were  held  to  be  in  esse  as  such 
corporation,  notwithstanding  a  subsequent  act  of  the  legis- 
lature, dividing  the  township  of  Plymouth  and  erecting 
two  new  townships  out  of  it  and  some  adjoining  territory, 
by  the  names  of  Plymouth  and  Jackson,  and  authorizing 
the  inhabitants  of  Jackson  to  elect  officers  who  were  to  take 
charge  of  a  portion  of  said  funds  within  that  township,  and 
to  be  a  corporation  by  the  name  of  the  "Trustees  of  the 
township  of  Jackson."  See,  also,  the  cases  of  Harrison  v. 
Bridgeton,  16  Mass.  16 ;  Commonwealth  v.  Cullen,  1  Har- 
ris, 133;  Brown  v.  Hummel,  6  Barr.  86;  and  Poultney  r. 
Wells,  1  Aik.  180,  cited  by  the  court  of  Vermont. 

For  the  reasons  which  we  have  thus  imperfectly  at- 
tempted to  give,  and  upon  the  authorities  we  have  cited, 
we  answer  the  first  question  in  the  negative,  and  give  it 
as  our  opinion  that  the  legislature  has  not  the  power,  under 
the  provision  of  our  constitution  and  that  of  the  constitu- 
tion of  the  United  States  to  which  we  have  referred,  either 
directly  or  indirectly  to  divest  a  municipal  corporation  of 
its  private  property,  without  the  consent  of  its  inhabitants 
lawfully  obtained.  Our  answer  to  this  question  renders  it 
unnecessary  for  us  to  notice  the  other.  We  will  do  so  only 
so  far  as  it  is  necessary,  in  the  opinion  of  the  court,  to  ac- 
quit the  legislature  of  all  intention,  by  the  act  extending 
the  limits  of  the  city  of  Milwaukee,  to  injure  or  deprive 
the  town  of  any  of  its  just  rights.  It  is  evident  to  our 
minds,  from  all  the  circumstances,  that  at  the  time  of  the 


Opinions  of  Chief  Justice  Dixon.  122 

passage  of  that  act  the  interests  of  the  town  in  the  land 
were  either  unknown,  or  not  thought  of,  and  that,  there- 
fore, its  possible  effects  upon  them  were  not  taken  into  con- 
sideration. 

Contrary  to  our  intention  at  the  outset,  we  have  ex- 
amined many  authorities,  and  disposed  of  the  case  before 
noticing  those  cited  and  relied  upon  by  the  counsel  for  the 
city,  which  we  will  now  proceed  to  do.  And,  first,  we  may 
notice  a  view  taken  by  the  counsel,  upon  which  hinges,  to 
a  great  extent,  the  application  which  he  seeks  to  make  of 
them  to  this  case.  The  land  in  question  was  purchased  on 
the  14th  day  of  January,  1846.  The  city  was  originally 
chartered  on  the  31st  day  of  the  same  month.  So  that,  in, 
reality,  the  territory  constituting  the  city  was,  at  the  time 
the  land  was  acquired,  a  part  of  the  town.  Upon  these 
facts  he  says  it  is  to  be  presumed  that  the  land  was  paid 
for  with  funds  raised  from  the  whole  taxable  property  of 
the  town.  He  furthermore  states,  that  the  present  limits 
of  the  city  embrace  a  much  larger  portion  of  the  taxable 
property  of  the  town,  as  it  was  before  the  city  was  incor- 
porated, than  that  which  was  left  in  the  town  after  such 
act  of  incorporation  of  the  city.  He  therefore  contends 
that  it  was  the  intention  of  the  legislature,  by  the  separa- 
tion of  1852,  to  transfer  the  property  to  the  city,  because 
the  city,  having  contributed  more  towards  the  purchase 
money,  has  a  better  right  in  equity  than  the  town.  In  an- 
swer to  this  argument,  we  may  say,  that  it  does  not  ap- 
pear from  the  record  that  the  city  paid  any  portion  of  the 
purchase  money,  nor  does  the  record  show  what  the  value 
of  the  taxable  property  of  the  city,  as  compared  with  that 
of  the  town,  is.  We  cannot  indulge  in  the  presumption 
that  the  city  paid  any  portion  of  the  purchase  money. 
The  purchase  of  the  land  and  original  incorporation  of  the 


123  Town  of  Milwaukee  v.  City  of  Milwaukee* 

city  were  very  nearly  contemporaneous  acts,  and  it  is  quite 
as  natural  to  suppose  that  the  town  paid  for  the  land  out 
of  money  afterwards  raised  by  the  inhabitants,  as  with 
funds  realized  in  any  other  way.  But  suppose  it  was  paid 
for  in  the  manner  which  the  counsel  invites  us  to  presume, 
still  the  inhabitants  of  the  city,  by  procuring  it  to  be  in- 
corporated as  such,  without  any  provision  as  to  the  land, 
and  by  an  acquiescence  of  six  years  and  upwards,  must  be 
presumed  to  have  released  their  interest  in  it,  and  to  have 
consented  that  it  remain  the  sole  property  of  the  town  as  it 
was  after  such  division.  The  charter  of  the  city  must  be 
presumed  to  have  been  granted  at  the  request  of  its  inhab- 
itants, and  the  loss  to  the  town  of  so  much  of  its  taxable 
property,  without  a  corresponding  diminution  of  the  ex- 
penses of  its  government,  together  with  the  advantages 
gained  to  the  inhabitants  of  the  city  by  their  new  form  of 
government,  furnishes  ample  consideration  for  such  re- 
lease, which,  under  the  circumstances,  must  be  presumed. 
By  incorporating  the  city,  without  dividing  the  land,  it 
became  the  sole  property  of  the  town;  and,  if  such  effect 
was  inequitable,  it  was  not  in  the  power  of  the  legislature, 
without  the  consent  of  the  town,  afterwards  to  remedy  the 
evil.  See  Hampshire  v.  Franklin,  16  Mass.  76,  where  the 
doctrine  of  such  presumptions,  and  the  power  of  the  leg- 
islature, are  fully  discussed.  With  these  remarks,  it  will 
be  readily  perceived  that  the  cases  of  Hempstead  v.  Hemp- 
stead  bear  very  remotely  upon  the  question  we  are  consid- 
ering, and,  with  the  exception  of  a  single  remark,  merely 
obiter  made  by  the  chancellor  in  2  Johnson,  and  subse- 
quently repeated  in  Hopkins  and  Wendell,  their  authority 
does  not  at  all  conflict  with  the  conclusions  to  which  we 
have  arrived  or  the  cases  to  which  we  have  referred.  It  is 


Opinions  of  Chief  Justice  Dixon.  124 

said  that  a  town  cannot  "possess  any  control  or  rights  in  or 
over  lands  lying  within  another  town."  As  applied  to  the 
facts  in  those  cases,  or  if  understood  as  limited  to  the 
rights  of  towns  to  acquire  lands  outside  their  boundaries, 
it  is  very  proper.  But,  farther  than  this,  we  are  unwill- 
ing to  go.  There  was  nothing  in  the  facts  of  those  cases 
which  called  for  the  remark  or  the  establishment  of  such 
a  principle.  Each  turned  upon  the  doctrine,  in  favor  of 
which  the  courts  make  many  strong  arguments,  that  the 
act  dividing  the  town  of  Hempstead  and  creating  the  town 
of  North  Hempstead  was  passed  at  the  request  of  the  in- 
habitants, and  that  with  their  assent  it  operated  as  a  legis- 
lative partition  of  the  common  property,  which  was  di- 
vided according  to  the  limits  of  the  towns  as  they  existed 
after  the  division.  Chancellor  Kent,  in  the  case  in  2 
Johnson,  says  expressly,  that  "the  erection  of  a  new  town 
cannot  impair  the  rights  of  the  old  one,  and  the  new  town 
has  none  but  what  are  given  to  it  at  the  time  of  creating  it, 
or  subsequently."  That  it  was  a  legislative  partition  with 
the  consent  of  the  inhabitants,  is  sustained  by  the  language 
of  the  act,  long  acquiescence,  and  many  express  acts  on 
the  part  of  the  towns  themselves.  It  was  upon  this  ground 
the  cases  were  decided.  In  Hopkins,  the  chancellor  says, 
that  "the  legislature,  acting  upon  the  application  of  some, 
and  with  the  acquiescence  of  all,  divided  the  town,"  and 
concludes  his  opinion  in  these  words :  "The  general  con- 
clusions from  all  these  views  are,  that  the  division  of  the 
original  town  of  Hempstead,  in  1784,  was  a  legislative  par- 
tition of  the  lands  of  the  town  between  the  two  new  towns ; 
that  the  partition  of  these  lands  by  the  division  of  the  town 
must  have  been  within  the  contemplation  and  with  the  as- 
sent of  those  who  solicited  and  those  who  acquiesced  in  the 


125        Note  to  Town  of  Milwaukee  v.  City  of  Milwaukee. 

division ;  and  that  the  partition  so  made  was  not  inequita- 
ble or  unjust,  in  the  state  of  things  which  then  existed." 

It  follows  from  the  views  we  have  taken,  that  the  judg- 
ment of  the  circuit  court  must  be  reversed,  and  a  new 
trial  awarded. 

NOTE. 

Milwaukee  v.  Milwaukee,  supra,  has  been  cited  with 
approval  in  Wisconsin,  as  follows:  State  ex  rel.  etc.,  v. 
Haben,  22  Wis.  666;  Mills  v.  Charlton,  29  Wis.  415; 
Town  of  Depere  v.  Town  of  Bellevue,  31  Wis.  125  ;  Atty.- 
Gen.  v.  City  of  Eau  Claire,  37  Wis.  436;  Cathcart  v. 
Comstock,  56  Wis.  600;  Schriber  v.  Town  of  Langlade, 
66  Wis.  631 ;  Forest  County  v.  Langlade  County,  76  Wis. 
610;  School  Directors  of  Pelican  v.  School  Directors  of 
Rock  Falls,  81  Wis.  438 ;  City  of  Columbus  v.  Town  of 
Columbus,  82  Wis.  381,  16  L.  R  A.  698 ;  School  Direc- 
tors of  Town  of  Ashland  v.  City  of  Ashland,  87  Wis.  536 ; 
Joint  School  Dist.  No.  8  v.  School  Dist.  No.  5,  92  Wis. 
612 ;  State  ex  rel.  Princeton  v.  Maik,  113  Wis.  246. 

It  has  been  cited  with  approval  outside  of  the  Wisconsin 
Supreme  Court  as  follows:  Pearson  v.  State,  56  Ark. 
153,  35  Am.  St.  Eep.  93 ;  Lucas  v.  Bd.  of  Comrs.  of  Tip- 
pecanoe  County,  44  Ind.  532,  538 ;  City  of  Wellington  v. 
Wellington  Township,  46  Kan.  221,  39  la.  44;  State  v. 
Foley,  30  Minn.  357;  City  of  Winona  v.  School  Dist.,  40- 
Minn.  18,  3  L.  R  A.  48 ;  Board  v.  Board,  30  W.  Va.  430. 

Valuable  collections  of  authorities  citing  Milwaukee  v. 
Milwaukee,  supra,  will  be  found  in  notes  to  the  follow- 
ing cases  reported  in  L.  R.  A. :  State  ex  rel.  Richards  v. 
Cincinnati  (52  Oh.  St.  419),  27  L.  R  A.  738;  State  ex 
rel.  Bulkeley  v.  Williams  (68  Conn.  131),  48  L.  R.  A. 
486;  State  ex  rel.  White  v.  Barker  ("116  la.  96),  57  L. 
R,  A.  251. 


Opinions  of  Chief  Justice  Dixon.  126 


Hasbrouck  v.  The  City  of  Milwaukee. 

June  Term,  1860. 
(13  Wis.  37.) 

It  appears  in  this  case  that  the  Legislature  of  Wisconsin 
by  chapter  171,  Laws  of  1853,  authorized  the  City  of  Mil- 
waukee to  issue  the  bonds  of  said  city  to  an  amount  not  ex- 
ceeding'fifty  thousand  dollars,  ($50,000),  to  raise  money 
to  be  expended  in  the  construction  of  a  harbor  in  that  city. 
By  an  Act  of  March  18th,  1856,  the  Legislature  increased 
the  amount  of  bonds  the  city  could  issue  for  the  above 
purpose  to  One  hundred  thousand  dollars,  ($100,000). 
By  a  further  Act  of  the  Legislature  approved  February 
23rd,  1857,  it  was  provided  that  the  city  could  issue  such 
an  amount  of  bonds  as  might  be  necessary  to  complete  the 
harbor.  Action  was  brought  by  Hasbrouck  in  the  Circuit 
Court  of  Milwaukee  County  to  recover  a  balance  of  some- 
thing over  Seventy-three  thousand  dollars  ($73,000),  al- 
leged to  be  due  him  from  the  city,  for  labor  and  materials 
furnished  in  the  construction  of  said  harbor.  It  appeared 
from  the  complaint  that  Hasbrouck  was  the  assignee  of 
various  contracts  entered  into  with  the  city  for  the  con- 
struction of  the  harbor,  prior  to  the  passage  of  said  Act  of 
February,  1857,  and  that  said  contracts  provided  for  pay- 
ments for  the  construction  of  such  harbor  far  exceeding  in 
amount  the  sums  the  city  was  authorized  to  expend  by 
said  Acts  of  1853  and  1856,  and  the  amount  sued  for  by 
Hasbrouck  was  a  portion  of  such  excess.  The  Circuit 
Court  sustained  a  demurrer  to  the  complaint  on  the  ground 
that  it  stated  no  cause  of  action. 

The  other  facts  sufficiently  appear  from  the  opinion. 


127  Hasbrouck  v.  The  City  of  Milwaukee. 

The  following  are  the  propositions  of  law  decided : 

A  municipal  corporation  does  not  possess  the  power  to 
engage  in  works  of  internal  improvement,  such  as  the 
construction  of  railroads,  canals,  harbors  and  the  like, 
unless  that  power  is  specifically  granted  by  the  legis- 
lature. 

The  "act  to  authorize  the  mayor  and  common  council 
of  the  city  of  Milwaukee  to  issue  bonds,"  etc.,  ap- 
proved April  1st,  1853,  and  the  act  of  March  18th, 
1856,  amending  the  same,  did  not  confer  upon  the 
city  of  Milwaukee  power  to  construct  a  harbor,  the 
expense  of  which  should  exceed  $100,000;  and  a 
contract  for  the  construction  of  such  harbor,  which 
provided  for  a  greater  expenditure,  was  void  as  to  the 
excess,  for  want  of  corporate  power  in  the  city  to 
make  such  contract. 

A  subsequent  legislative  ratification  of  such  contract 
was  not  sufficient  proprio  vigore,  and  without  evi- 
dence that  such  ratification  was  procured  with  the 
assent  of  the  corporation,  or  had  been  subsequently 
acted  upon  or  confirmed  by  it,  to  make  the  contract 
obligatory  upon  the  corporation. 

Dixon,  Chief  Justice.  The  power  of  municipal  corpo- 
rations, when  authorized  by  the  legislature,  to  engage  in 
works  of  internal  improvements,  such  as  the  building  of 
railroads,  canals,  harbors  and  the  like,  or  to  loan  their 
credit  in  aid  thereof,  and  to  defray  the  expenses  of  such 
improvements  and  make  good  their  pledges  by  an  exer- 
cise of  the  power  of  taxing  the  persons  and  property  of 
their  citizens,  has  always  been  sustained  on  the  ground 
that  such  works,  although  they  are  in  general  operated 
and  controlled  by  private  corporations,  are  nevertheless, 


Opinions  of  Chief  Justice  Dixon.  128 

by  reason  of  the  facilities  which  they  afford  for  trade, 
commerce,  and  inter-communication  between  different  and 
distant  portions  of  the  country,  indispensable  to  the 
public  interests  and  public  functions.  It  was  originally 
supposed  that  they  would  add,  and  subsequent  experi- 
ence has  demonstrated  that  they  have  added  vastly  and 
almost  immeasurably,  to  the  general  business,  the  com- 
mercial prosperity,  and  the  pecuniary  resources  of  the 
inhabitants  of  the  cities,  towns,  villages  and  rural  dis- 
tricts through  which  they  pass,  and  with  which  they  are 
connected.  It  is  in  view  of  these  results,  the  public  good 
thus  produced,  and  the  benefits  thus  conferred  upon  the 
persons  and  property  of  all  the  individuals  composing  the 
community,  that  courts  have  been  able  to  pronounce  them 
matters  of  public  concern,  for  the  accomplishment  of  which 
the  taxing  power  might  lawfully  be  called  into  action.  It 
is  in  this  sense  that  they  are  said  to  fall  so  far  within  the 
purposes  for  which  municipal  corporations  are  created, 
that  such  corporations  may  engage  in,  or  pledge  their  credit 
for  their  construction.  Upon  no  other  principle  can  the 
exercise  of  the  power  of  taxation  for  such  objects  be  sus- 
tained. And  in  doing  so  the  courts  have  never,  to  my 
knowledge,  extended  it  to  cases  where  it  was  not  apparent 
that  the  members  of  the  corporation  concerned  would  be 
benefited  by  the  construction  of  the  work  contemplated. 
The  building  of  the  harbor  at  Milwaukee  comes  clearly 
within  this  principle,  and  upon  it  there  can  be  no  doubt 
that  so  far  as  the  corporation  has  acted  within  the  limits 
of  the  authority  granted  by  the  legislature,  it  is  bound  to 
a  strict  performance  of  its  contracts.  But  whilst  the 
power  of  such  corporations  when  authorized,  thus  to  en- 
gage in  or  loan  their  credit  for  the  making  of  such  im- 
provements, has  been  almost  invariably  upheld,  it  has  not 


129  Hasbrouck  v.  The  City  of  Milwaukee. 

as  yet,  I  believe,  been  adjudged  in  any  case,  that  they 
could  do  so  without  such  legislative  authority.  £To  court 
or  writer  upon  the  subject,  so  far  as  I  know,  has  ever 
claimed  or  intimated  that  they  could  do  so  in  the  absence 
of  such  authority.  On  the  other  hand,  the  general  ex- 
pression of  opinion  has  been  that  they  are  incompetent, 
by  virtue  of  their  ordinary  powers,  and  without  such  spe- 
cial legislative  authority,  to  contribute  to  such  enterprises. 
Mr.  Pierce,  in  his  treatise  on  American  Railroad  Law,  re- 
cently put  forth,  says  that  no  attempt  on  their  part,  with- 
out such  special  legislative  authority,  to  exercise  such  ex- 
traordinary powers,  has  yet  been  the  subject  of  judicial  ex- 
amination, and  adds  his  opinion  that  it  could  not  be  sus- 
tained. In  several  cases  which  have  heretofore  been  be- 
fore this  court,  it  has  been  conceded  by  counsel  that  it 
could  not  be.  In  this  case,  the  counsel  for  the  plaintiff 
in  error  expressly  waived  its  discussion,  and  virtually  ad- 
mitted that  the  rights  of  their  client  must  stand  or  fall 
upon  the  true  construction  of  the  several  acts  of  the  legis- 
lature by  which  the  city  was  permitted  to  engage  in  the 
work.  They  rested  the  case  upon  the  effect  to  be  given  to 
those  acts  and  the  action  of  the  city  under  them.  Its  de- 
cision, therefore,  depends  upon  the  construction  which 
they  shall  receive,  and  the  several  steps  taken  by  the  city 
in  pursuance*  of  them. 

And  here  it  will  become  more  convenient  for  me  to  re- 
verse the  order  of  argument  pursued  at  the  bar,  and  of 
time  in  which  the  several  acts  were  passed,  and  to  examine 
the  last  position  taken  by  the  counsel  for  the  plaintiff  in 
error  under  the  last  act  first,  and  in  connection  with  it 
the  authorities  by  which  they  seek  to  support  it.  It  is 
said  by  them,  that  if  it  be  conceded  that  under  the  two 

previous  statutes  the  city  was  only  authorized  to  enter  into 
9 


Opinions  of  Chief  Justice  Dixon.  130 

a  contract  for  the  construction  of  a  harbor,  the  expense  of 
which  should  not  exceed  $100,000,  and  that  the  municipal 
authorities  were  not,  at  the  time  they  attempted  to  do  so, 
empowered  to  make  an  agreement,  or  bind  the  corporation 
for  the  payment  of  a  greater  sum,  the  defect  is  cured  by 
the  operation  of  the  act  of  February  23rd,  1857,  (chapter 
66,  Private  Laws,  1857),  and  that  from  and  after  the 
passage  of  this  act,  the  agreement  for  the  excess  became 
valid  and  binding  upon  the  city.  To  this  position  counsel 
cite  several  authorities,  and  as  I  am  unable  to  agree  with 
them,  an  examination  of  those  authorities  will  become 
necessary.  In  the  first  place,  it  will  be  observed  from 
what  has  already  been  said,  and  should  be  borne  in  mind, 
that  the  subject  with  which  we  are  dealing  is  not  one  of 
public  policy  merely,  but  of  corporate  power,  and  that  the 
inquiry  is  whether,  where  the  supposed  contract  of  a  pub- 
lic corporation  is  absolutely  void  for  want  of  capacity  to 
enter  into  it,  a  subsequent  legislative  ratification  or  recog- 
nition of  it  is  sufficient,  proprio  vigore,  and  without  any 
evidence  that  such  ratification  or  recognition  was  procured 
at  the  instance  or  with  the  assent  of  the  corporation,  or 
that  the  corporation  had  subsequently  acted  upon  or  con- 
firmed it,  to  give  such  contract  life  and  validity,  and  make 
it  obligatory  upon  the  corporation.  Conceding  that  the 
previous  statutes  did  not  confer  upon  the  city  the  power 
to  enter  into  the  contract,  which  I  shall  discuss  hereafter, 
then  I  understand  such  to  be  the  true  nature  of  the  inquiry 
here  presented.  I  do  not  understand  that  the  city,  by 
;any  appropriate  action,  petitioned  or  asked  for  the  passage 
of  the  act;  nor  is  it  averred  that  it  subsequently  ratified 
or  assented  to  it.  On  the  contrary,  I  infer  from  this  pro- 
ceeding, that  it  has  refused  to  be  bound  by  it,  or  the  con- 
tract to  which  it  had  reference.  Under  these  circum- 


131  Hasbrouck  v.  The  City  of  Milwaukee. 

stances  the  question  is,  can  the  legislature,  by  recognizing 
the  existence  of  a  previously  void  contract,  and  authorizing 
its  discharge  by  the  city,  or  in  any  other  way,  coerce  the 
city  against  its  will  into  a  performance  of  it,  or  does  the 
law  require  the  assent  of  the  city  as  well  as  of  the  legisla- 
ture in  order  to  make  the  obligation  binding  and  effica- 
cious ?  I  must  say  that,  in  my  opinion,  the  latter  act,  as 
well  as  the  former,  is  necessary  for  that  purpose,  and  that 
without  it  the  obligation  cannot  be  enforced.  A  contract 
void  for  want  of  capacity  in  one  or  both  of  the  contracting 
parties  to  enter  into  it,  is  as  no  contract ;  it  is  as  if  no  at- 
tempt at  an  agreement  had  ever  been  made.  And  to  ad- 
mit that  the  legislature,  of  its  own  choice  and  against  the 
wishes  of  either  or  both  of  the  contracting  parties,  can  give 
it  life  and  vigor,  is  to  admit  that  it  is  within  the  scope  of 
legislative  authority  to  divest  settled  rights  of  property, 
and  to  take  the  property  of  one  individual  or  corporation 
and  transfer  it  to  another.  It  is  certainly  unnecessary 
at  this  day  to  enter  into  an  argument  or  to  cite  authorities 
to  show  that  under  a  constitutional  government  like  ours 
the  legislature  has  no  power. 

It  is  undoubtedly  true  that  in  cases  like  the  present, 
where  there  is  a  strong  moral  but  no  legal  obligation  to 
pay,  courts  have  often  seized,  and  may  again  seize  upon 
very  slight  circumstances  of  assent  in  order  to  give  effect 
to  the  contract.  And  in  this  case,  if  it  appeared  that  the 
city  did,  by  some  authorized  action,  procure  the  passage 
of  the  act,  or  had  subsequently  acquiesced  in  it  by  ratify- 
ing the  contract,  there  would  be  little  difficulty  in  the  way 
of  holding  it  bound  by  its  terms.  In  such  cases  it  is  the 
contemporaneous  or  subsequent  assent  of  the  parties  to  be 
found,  coupled  with  the  power  or  ability  on  their  part  to 


Opinions  of  Chief  Justice  Dixon.  132 

give  such  assent,  which  makes  the  contract  obligatory. 
But  the  giving  of  such  assent  is  a  matter  which  depends 
upon  their  own  free  will.  It  is  a  voluntary  act  which 
they  may  do  or  not  as  they  see  fit,  and  in  case  they  think 
proper  to  withhold  it,  the  legislature  has  no  power  to  com- 
pel it.  If  in  a  transaction  between  private  parties,  a 
contract  made  by  them  should  be  declared  void  by  the  pro- 
visions of  some  statute,  as  for  instance,  a  statute  against 
usury,  no  one  I  think  would  insist  that  the  legislature 
could,  without  the  consent  of  the  borrower,  remove  the  in- 
firmity and  make  the  agreement  obligatory  upon  him.  It 
might  change  the  entire  policy  of  the  State  upon  the  sub- 
ject of  interest,  and  declare  that  no  rate  however  exorbitant 
should  avoid  the  security,  but  it  could  not,  without  the 
assent  of  the  parties,  interfere  with  past  transactions. 
Corporations,  whether  public  or  private,  are  within  the 
same  rule  of  protection,  and  I  can  see  no  substantial 
ground  for  a  distinction  between  contracts  which  are  void 
for  a  want  of  capacity  in  one  or  both  of  the  contracting 
parties  to  enter  into  them,  and  those  which  are  void  for 
some  other  cause.  If  the  city  in  this  instance  had  ac- 
cepted and  approved  the  act  of  the  legislature,  in  whole 
or  in  part,  there  can  be  little  doubt  that  to  the  extent  of 
such  acceptance  and  approval  it  would  have  become 
bound.  The  case  would  then  have  fallen  within  the  prin- 
ciples of  the  case  of  the  City  of  Bridgeport  v.  The  Hous- 
atonic  Railroad  Company,  15  Conn.  R.  475,  where  the 
bonds  of  the  -city  issued  to  aid  in  the  construction  of  the 
company's  road  were  held  valid,  because  the  confirmatory 
resolution  of  the  general  assembly  was  afterwards  accepted 
by  the  freemen  of  the  city.  It  would  also  come  within 
the  doctrine  of  this  court  laid  down  in  the  recent  case  of 


133  Hasbrouck  v.  The  City  of  Milwaukee. 

Mills  v.  Gleason ;  but  until  there  be  such  acceptance  I  know 
of  no  authority  for  saying  that  the  city  is  bound. 

The  mistake  of  the  counsel  for  the  plaintiff  in  error  con- 
sists in  their  supposing  it  to  be  a  mere  question  of  public 
policy.  If  it  were,  and  the  court  were  only  called  upon 
to  determine  what  was  the  policy  of  the  State  with  refer- 
ence to  allowing  municipal  corporations  in  general,  and 
the  corporation  of  Milwaukee  in  particular,  to  engage  in 
works  of  that  kind  at  the  time  the  contract  was  enlarged, 
then  I  would  admit  that  their  position  is  supported  by  the 
cases  of  Shaw  v.  Norfolk  County  Railroad  Company,  5 
Gray,  163,  and  Hall  and  others,  Trustees,  v.  Sullivan  R. 
R  Co.,  U.  S.  Cir.  Ct.  for  district  of  New  Hampshire,  re- 
ported in  Pierce  on  American  Railroad  Law,  page  520, 
note  1.  In  both  these  cases  the  question  arises  whether 
the  instruments  by  which  the  railroad  corporation  had  at- 
tempted to  transfer  their  franchises  were  invalid  upon 
grounds  of  public  policy.  It  was  insisted  that  as  the 
franchises  were  created  by  the  legislature  for  the  public 
benefit,  and  confined  to  particular  political  persons  to  be 
exercised  for  that  purpose,  any  attempt  to  delegate  them 
to  others  was  inoperative  and  void.  In  both  instances  the 
legislatures  of  the  respective  States  had,  by  acts  passed 
after  the  execution  of  the  conveyance,  referred  to  and 
recognized  them  as  valid.  In  the  first  named  case  the 
conveyance  had  been  directly  ratified  and  confirmed  by 
statute.  The  courts  held  that  such  acts  of  recognition  were 
conclusive  upon  their  effect,  because  they  showed  that  at 
the  time  they  were  executed,  no  rule  of  public  policy  was 
contravened.  They  acknowledged  the  power  of  the  legis- 
lature to  determine  and  control  the  policy  of  the  State  with 
regard  to  corporations  created  under  its  authority,  and 
looked  into  the  acts  as  evidence  of  what  that  policy  was 


Opinions  of  Chief  Justice  Dixon.  134 

when  the  transfers  were  made.  "No  question  of  corporate 
power  was  made.  The  policy  being  settled  in  favor  of  the 
transfers,  the  power  to  make  them  was  conceded.  But 
such  is  not  the  nature  of  the  transaction  before  us.  This 
is  not  a  question  of  conceded  power  and  doubtful  policy 
at  the  time  the  plan  was  changed  and  the  contract  enlarged, 
but  the  reverse.  We  cannot,  from  an  examination  of  the 
statute  under  consideration,  say,  as  the  courts  there  said, 
that  it  was  originally  the  intention  of  the  legislature  that 
the  corporation  should  possess  the  power  which  it  has  at- 
tempted to  exercise.  We  cannot  infer  from  it  that  the 
legislature  intended  at  the  outset  that  the  people  or  cor- 
porate authorities  of  Milwaukee  should  have  the  power 
to  expand  the  undertaking  and  augment  its  expense  at 
their  pleasure,  but  rather  the  contrary.  The  more  natural 
and  truthful  inference  is,  that,  in  the  opinion  of  the  legis- 
lature, they  had  not  such  power,  and  hence  the  passage 
of  the  act  for  the  purpose  of  enabling  the  city,  if  it  chose, 
.to  do  that  which  under  the  circumstances  the  legislature 
deemed  to  be  equitable  and  just.  The  language  of  the  act 
is  permissive  and  not  compulsory.  It  indicates  no  desire 
on  the  part  of  the  legislature,  even  if  it  possessed  the 
power,  to  compel  the  city  to  issue  its  bonds  for  the  com- 
pletion of  the  harbor.  The  legislature  simply  say  that  the 
mayor  and  common  council  are  authorized  and  empowered 
to  issue  such  an  amount  of  bonds  as  may  be  necessary  to 
complete  it,  in  such  denominations  as  they  may  deem 
proper,  and  bearing  interest  at  a  rate  not  exceeding  seven 
per  cent. 

It  furthermore  sufficiently  appears  in  both  the  above 
named  cases  that  the  railroad  companies  had  acted  under 
and  ratified  the  confirmatory  statutes.  In  the  first  it  is 
distinctly  stated  that  the  company  had  paid  a  portion  of 


135  Hasbronck  v.  The  City  of  Milwaukee. 

the  interest  which  had  accrued  upon  the  bonds,  for  the 
security  of  which  the  mortgage  was  executed,  after  the  pas- 
sage of  the  statute ;  and  in  the  second,  although  there  is  no 
separate  statement  of  the  facts,  and  we  have  only  such  as 
are  to  be  gathered  from  the  opinion  of  the  court,  which 
does  not  profess  to  give  them  completely  and  accurately, 
still  I  think  it  is  fairly  to  be  inferred  from  what  is  said, 
that  the  company  had  acted  under  the  first  statute  and 
issued  new  stock  in  pursuance  of  the  authority  there  given. 
So  that  if  any  doubts  had  arisen  in  those  cases  as  to  the 
power  of  the  companies  to  mortgage  their  franchises,  there 
was  such  evidence  of  their  subsequent  assent  as  would  have 
cured  the  defect,  and  they  would  then  have  been  no  guide 
for  the  determination  of  this  case. 

It  follows  from  what  I  have  already  said,  that  in  my 
opinion  this  is  not  a  defect  which  can  be  reached  by  the 
retroactive  power  of  the  legislature  alone.  It  cannot,  be- 
cause in  so  doing  the  legislature  would  interfere  with 
vested  rights  of  property.  It  would  of  its  own  mere  mo- 
tion create  an  obligation  where  by  law  none  before  ex- 
isted; it  would  impose  a  liability  against  the  will  and 
without  the  consent  of  the  party  to  be  charged.  This  the 
legislature  cannot  do.  It  can  only  act  retrospectively  for 
the  purpose  of  furnishing  a  remedy  for,  or  removing  an 
impediment  in  the  way  of  the  enforcement  of  some  pre- 
existing legal  or  equitable  right  or  duty,  and  not  for  the 
purpose  of  creating  such  right  or  duty.  And  the  distinc- 
tion, I  think,  will  be  found  to  prevail  in  all  the  cases.  An 
examination  of  them  will,  I  believe,  show  that  such  legis- 
lation has  not  been  permitted  to  conclude  the  rights  of  the 
parties  except  when  legal  or  equitable  rights  or  obligations 
had  grown  up  out  of  the  previous  lawful  acts  and  dealings 
of  the  parties,  and  existed  independently  of  the  defect  or 


Opinions  of  Chief  Justice  Dixon.  136 

irregularity  complained  of,  and  which  the  legislature 
sought  to  cure  or  remove;  and  that  no  case  can  be  found 
where  it  has  been  held  that  such  legislative  action  alone 
was  sufficient  to  give  life  and  validity  to  supposed  contracts 
or  obligations  which  originated  solely  and  exclusively  in 
acts  which  it  was  unlawful  or  impossible  for  the  parties 
themselves  at  the  time  to  perform.  Chancellor  Kent,  in 
the  first  volume  of  his  Commentaries,  page  455  of  the 
original  edition,  in  speaking  of  the  retroactive  power  of 
the  legislature  in  this  country^  sums  up  the  doctrine  very 
clearly  and  accurately.  He  says:  "A  retrospective  stat- 
ute, affecting  and  changing  vested  rights,  is  very  generally 
considered  in  this  country  as  founded  on  unconstitutional 
principles,  and  consequently  inoperative  and  void.  But 
this  doctrine  is  not  understood  to  apply  to  remedial  stat- 
utes, which  may  be  of  a  retrospective  nature,  provided  they 
do  not  impair  contracts,  or  disturb  absolute  vested  rights, 
and  only  go  to  con-firm  rights  already  existing,  and  in  fur- 
therance of  the  remedy,  by  curing  defects  and  adding  to 
the  means  of  enforcing  existing  obligations.  Such  statutes 
have  been  held  valid  when  clearly  just  and  reasonable, 
and  conducive  to  the  general  welfare,  even  though  they 
might  operate  in  a  degree  upon  existing  rights,  as  a  statute 
to  confirm  former  marriages  defectively  celebrated  or  a 
sale  of  lands  defectively  made  or  acknowledged.  The 
legal  rights  affected  in  those  cases  by  the  statutes,  were 
deemed  to  have  vested  subject  to  the  equity  existing  against 
them,  and  which  the  statutes  recognized  and  enforced. 
But  the  cases  cannot  be  extended  beyond  the  circumstances 
on  which  they  repose,  without  putting  in  jeopardy  the 
energy  and  safety  of  the  general  principle."  In  this  case 
it  is  impossible  to  say  that  by  virtue  of  the  supposed  con- 
tract the  plaintiff  did  or  could  obtain  any  vested  rights  as 


137  Hasbrouck  v.  The  Ci'y  of  Milwaukee. 

against  the  city,  beyond  the  $100,000  which  it  was  pre- 
viously authorized  to  expend  in  the  building  of  the  harbor, 
for  the  reason  that  it  was  not  in  the  power  of  the  people 
or  the  corporate  authorities,  by  any  action  which  they 
could  take,  to  lay  the  foundation  for  such  rights.  If  the 
city  had  possessed  the  general  authority  to  build  the  harbor 
without  regard  to  the  expense,  but  had  failed  through 
some  technical  error  or  mistake  to  exercise  that  authority 
in  the  manner  prescribed  by  law,  the  case  might  then  have 
fallen  within  the  remedial  power  of  the  legislature;  but 
now  it  does  not,  unless  the  city  assents  to  it. 

The  authorities  cited  by  the  counsel  for  the  plaintiff  in 
error,  and  which  may  be  supposed  to  be  the  strongest  that 
can  be  found  in  support  of  their  position,  will  sufficiently 
illustrate  this  rule.  In  Wilkinson  v.  Leland,  2  Peters, 
627,  the  executrix  appointed  under  a  will  which  had  been 
admitted  to  probate  in  the  State  of  New  Hampshire,  under 
an  order  of  the  probate  court  of  that  State,  sold  and  con- 
veyed some  real  estate  which  had  belonged  to  the  testator, 
situated  in  the  State  of  Rhode  Island,  for  the  payment  of 
debts.  The  estate  of  the  testator  was  represented  to  be 
insolvent  and  was  in  fact  nearly  so,  there  being  only  some 
£15  left  for  distribution  after  appropriating  the  proceeds 
of  all  his  effects,  including  the  price  of  the  land  in  ques- 
tion, to  the  payment  of  the  debts  due  from  him,  and  de- 
ducting the  expenses  of  administration.  It  was  con- 
ceded that  the  probate  court  of  New  Hampshire  had  no 
power  to  direct  the  sale  of  lands  in  another  State,  and  that 
the  sale  and  conveyance  were  consequently  inoperative  and 
void.  The  legislature  of  Rhode  Island  subsequently,  on 
the  petition  of  the  executrix,  ratified  and  confirmed  the 
deed.  The  funds  realized  were  applied  by  her  in  dis- 
charge of  the  demands  of  the  creditors.  There  was  no 


Opinions  of  Chief  Justice  Dixon.  138 

pretense  that  the  sale  was  unfair,  or  that  any  part  of  the 
transaction  was  characterized  by  fraud  or  bad  faith.  The 
supreme  court  held  that  the  act  of  ratification  rendered 
the  conveyance  operative  and  effectual.  In  doing  so,  the 
court  make  the  decision  turn  mainly  upon  the  fact,  that 
by  the  laws  of  Rhode  Island,  as  of  all  the  New  England 
States,  the  real  estate  of  testators  and  intestates  stands 
chargeable  with  the  payment  of  their  debts,  upon  a  de- 
ficiency of  assets  of  personal  estate,  and  although  at  law 
the  title  is  said  to  vest  in  the  heir  or  devisee  immediately 
on  the  death  of  the  ancestor  or  testator,  yet  it  does  so  only 
conditionally  and  subject  to  the  liens  or  claims  of  credi- 
tors, for  the  satisfaction  of  which  it  is  liable  to  be  divested 
and  sold.  It  is  only  the  interest  which  is  left  after  the 
payment  of  the  debts  that  goes  to  the  heir  or  devisee.  The 
court  considered  the  estate  or  its  proceeds  as  belonging  to 
the  creditors,  for  whose  benefit  it  was  liable  in  law  to  be 
sold  and  conveyed.  Their  rights  were  pre-existing  and 
legal,  and  the  act  of  confirmation,  as  well  as  the  sale  and 
conveyance,  were  purely  remedial  in  their  nature;  they 
aided  in  the  enforcement  of  existing  obligations,  in  giving 
the  creditors  what  justly  already  belonged  to  them.  It  is 
very  evident  from  the  opinion  that  if  there  had  been  no 
creditors,  and  therefore  no  pre-existing  rights,  the  con- 
clusion of  the  court  must  have  been  quite  different.  The 
sale  and  conveyance,  at  the  time  they  were  made,  were  not 
unlawful,  improper  or  impossible  in  themselves.  The  de- 
fect consisted  only  in  the  manner  in  which  they  were  made 
and  executed. 

The  case  of  the  Syracuse  City  Bank  v.  Davis,  16  Bar- 
bour,  188,  is  similar  in  its  character.  The  bank  lacked 
nothing  of  the  substance  of  a  good  institution  of  the  kind. 
It  had  a  sound  capital  and  had  practically  performed  all 


139  Hasbrouck  v.  The  City  of  Milwaukee* 

the  duties  which  pertained  to  it,  but  a  mistake  had  oc- 
curred in  the  form  of  the  proof  and  acknowledgment  of  a 
part  of  the  subscribers  to  the  certificate.  The  objection 
was  entirely  technical  in  its  nature,  and  did  not  go  to  any 
of  the  substantial  requirements  of  the  law.  It  was  a  bank 
de  facto,  and  the  act  which  it  had  done  was  not  beyond 
the  legitimate  scope  or  powers  of  such  a  corporation.  It 
was  not  the  case  of  a  bank  attempting  to  do  that  which  at 
the  time  no  bank  could  do.  The  removal  of  the  obstruc- 
tion was  therefore  a  remedial  act  which  aided  in  the  en- 
forcement of  a  just  and  equitable  obligation  to  which  there 
was  otherwise  no  legal  objection.  Possessing  all  the  essen- 
tial qualities  of  a  perfect  institution,  and  the  transaction 
being  lawful,  its  contract  was  not  a  nullity,  so  that  with 
the  aid  of  the  legislature  it  could  not  be  enforced.  It  was 
regarded  so  far  a  complete  corporation  as  to  have  the  ca- 
pacity of  acquiring  vested  rights,  though  owing  to  a  tech- 
nical irregularity  there  was  an  impediment  in  the  way  of 
applying  the  remedy,  which  the  legislature  proceeded  to 
displace.  The  act  did  not  profess  to  create  a  new  corpora- 
tion, but  to  remedy  the  defects  in  the  organization  of  one 
which  already  existed.  In  the  present  case,  if  the  statute 
is  to  be  held  to  have  any  beneficial  effect  whatever,  it  must 
be  because  it  gave  to  the  city  a  power  or  capacity  beyond 
what  it  before  possessed.  For  if,  as  was  contended  by 
counsel,  it  had  by  the  previous  acts  the  authority  to  enter 
into  a  contract  for  the  completion  of  the  entire  harbor  on 
the  plan  last  adopted  and  without  limitation  as  to  price, 
then  the  act  was  nugatory  and  useless.  For  then  it  would 
have  had  the  power  to  issue  its  bonds  or  any  other  evidence 
of  indebtedness,  without  the  assistance  of  this  statute. 
Such  power  would  have  flowed  from  its  ability  to  contract, 
and  it  needed  not  the  action  of  the  legislature  to  enable  it 


Opinions  of  Chief  Justice  Dixon.  140 

to  adjust  or  settle  its  liabilities  in  such  form  as  the  mu- 
nicipal authorities  saw  fit  to  adopt.  See  Mills  v.  Gleason, 
supra,  and  Ketcham  v.  The  City  of  Buffalo,  and  the  au- 
thorities there  cited  in  the  opinion  of  Wright,  J.  The 
statute  therefore  does  not  operate  in  this  case  as  it  did  in 
that,  remedially.  It  was  there  designed  to  cure  a  defec- 
tive exercise  of  the  power  to  organize  a  bank,  a  power 
which  already  existed.  Here  it  was  not  intended  to  help 
out  the  operation  of  an  existing  power,  but  to  confer  one 
which  the  corporation  did  not  before  possess.  The  dis- 
tinction is  between  aiding  the  imperfect  execution  of  an 
authority  previously  granted  or  act  lawful  in  itself,  and 
the  granting  of  a  new  authority  or  attempting  to  relieve 
against  an  unlawful  act. 

It  requires  no  effort  to  distinguish  between  this  case  and 
that  of  Foster  v.  The  Essex  Bank,  16  Mass.  245.  There 
the  statute  was  clearly  remedial.  It  provided  generally 
that  all  corporations  then  existing  or  thereafter  to  be  es- 
tablished, whose  powers  should  expire  at  a  given  time, 
should  be  continued  in  existence  as  bodies  corporate  for 
three  years  after  the  time  limited  by  their  charters,  for  the 
purpose  of  suing  and  being  sued,  settling  and  closing  their 
concerns,  and  dividing  their  capital  stock;  but  not  for 
continuing  the  business  for  which  they  were  established. 
It  is  very  evident  that  the  object  of  the  act  was  to  save  and 
continue  the  remedy  upon  existing  obligations  and  not  to 
create  new  ones.  The  same  reasoning  will  apply  to  cases 
of  marriage  defectively  celebrated,  judgments  entered  on 
the  wrong  day  (10  Serg.  &  Rawle,  101),  deeds  defect- 
ively acknowledged  (16  id.  35),  or  remedies  given  where 
by  law  none  before  existed  (7  Watts,  300). 

I  therefore  think  that  this  action  cannot  be  maintained 
unless,  as  was  contended  by  counsel,  the  city  had  the  power 


141  Hasbrouck  v.  The  City  of  Milwaukee. 

to  enter  into  and  bind  itself  by  the  contract  under  the  pro- 
visions of  the  previous  acts.  If  it  had,  then  it  may;  for 
the  contract  was  made  and  the  work  completed  after  their 
passage,  but  before  the  enactment  of  that  which  I  have 
been  considering. 

I  have  already  noticed  that  if,  by  the  previous  acts,  au- 
thority was  delegated  to  the  city  to  complete  the  harbor  in 
the  manner  in  which  it  has  been  done,  then  the  last  act  was 
wholly  nugatory  and  useless.  It  would  be  so  except  so  far 
as  it  might  be  considered  as  a  legislative  interpretation  of 
the  former  acts,  and  in  that  respect  it  would  make  against 
the  construction  contended  for  by  the  counsel  for  the 
plaintiff  in  error.  It  shows  most  indubitably  that  in  the 
opinion  of  the  legislature  the  city  was  limited  by  them  to 
an  expenditure  of  $100,000.  This  I  cannot  for  a  moment 
doubt  is  the  true  construction  of  those  acts.  It  is  manifest 
to  me  from  their  entire  scope  and  tenor,  and  the  language 
used,  particularly  in  the  first,  (chapter  171,  Laws  of 
1853),  under  which  the  enlarged  power  is  claimed,  that 
such  was  the  intention  of  the  legislature.  Its  language  is 
restrictive.  The  mayor  and  common  council  were  author- 
ized to  issue  bonds  of  the  city  to  an  amount  not  exceeding 
fifty  thousand  dollars.  The  regulations  to  be  observed  and 
steps  to  be  taken  before  the  bonds  could  be  issued,  clearly 
indicate  it.  The  assent  of  a  majority  of  the  legal  voters 
was  first  to  be  obtained.  Before  issuing  any  bonds  the 
common  council  were  required  to  submit  the  question  of 
such  loan  to  the  legal  voters  of  the  city  at  an  election  to  be 
called  for  that  purpose,  of  which  at  least  ten  days'  notice 
was  to  be  given,  and  at  which  election  the  votes  should  be 
by  ballot,  which  should  have  written  or  printed  thereon 
the  words  "for  the  harbor  loan,"  or  the  words  "against 
the  harbor  loan;"  and  if  a  majority  of  the  votes  cast  on 


Opinions  of  Chief  Justice  Dixon.  142 

that  subject  should  be  "for  the  harbor  loan,"  the  common 
council  should  issue  the  bonds,  but  not  otherwise.  Why 
were  these  restrictive  words  used,  and  the  authority  of  the 
mayor  and  council  thus  circumscribed,  if  the  legislature 
intended,  by  making  it  their  duty,  "to  let  out  the  work 
by  contract  to  the  lowest  bidder,"  to  abrogate  the  limita- 
tion and  to  give  them  authority  to  bind  the  city  to  any  ex- 
tent they  saw  fit  ?  Was  it  not  the  intention  to  'make  the 
power  to  contract  subservient  to  the  general  restriction 
previously  imposed?  It  seems  to  me  clear  that  such  was 
the  object  in  view.  Such  construction  is  alone  in  harmony 
with  the  rule  that  we  are  so  to  construe  statutes  as  that  all 
may  stand  and  no  part  be  defeated.  It  is  consistent  with 
the  latter  provision  and  gives  it  the  effect  which  the  legis- 
lature intended,  whilst  the  opposite  construction  would 
frustrate  and  render  inoperative  their  will,  as  plainly  ex- 
pressed in  the  former.  This  interpretation  is  strengthened 
by  sec.  3  of  article  XI  of  the  constitution,  which  makes 
it  the  duty  of  the  legislature  to  restrict  cities'  and  villages 
in  their  power  of  taxation,  assessment,  borrowing  money, 
contracting  debts  and  loaning  their  credit,  so  as  to  prevent 
abuses  in  assessment  and  taxation  and  in  contracting  debts 
by  such  corporations.  In  imposing  this  restriction  when 
the  city  was  about  to  engage  in  such  an  enterprise,  the 
legislature  performed  a  plain  constitutional  duty.  And 
in  doing  so  what  more  unambiguous  or  less  doubtful 
method  could  they  have  adopted  than  that  of  fixing  the 
sum  which  the  city  might  expend  ?  Clearly  none.  Again, 
why  submit  the  question  to  the  will  of  the  voters,  if  such 
submission  was  to  have  the  effect  of  authorizing  the  mu- 
nicipal authorities  to  incur  an  indebtedness  many  times 
larger  than  that  upon  which  they  were  called  upon  to  ex- 
press their  opinion  ?  Was  it  the  intention  to  deceive  and 


143  Note  to  Hasbrouck  v.  The  City  of  Milwaukee, 

trick  upon  them  liabilities  and  burdens  of  which  they  had 
not  the  slightest  intimation?  Evidently,  the  legislature 
had  no  such  design,  but  the  intention  was  to  allow  the  city 
to  loan  its  credit  to  that  amount,  provided  a  majority  of 
the  voters  gave  their  consent,  otherwise  not  at  all.  With  a 
majority  vote  against  the  loan,  the  provision  in  relation  to 
letting  the  contracts  would  have  remained  a  dead  letter 
upon  the  statute  book. 

I  need  not  spend  time  upon  the  act  of  March  18th,  1856, 
(chapter  145,  Private  Laws,  1856).  It  simply  authorized 
an  increase  of  the  amount  of  the  bonds  to  $100,000.  ~No 
other  effect  was  claimed  for  it. 

I  do  not  discuss  the  questions  growing  out  of  the  alleged 
irregularities  in  the  reletting  or  subsequent  enlargement  of 
the  contract.  The  city  having  already  exceeded  the  limits 
fixed  by  the  first  two  acts,  by  issuing  its  bonds  to  a  greater 
amount  than  they  authorized,  and  there  being  no  averment 
in  the  complaint  that  it  has  assented  to  or  ratified  the  last, 
those  questions  become  immaterial.  In  my  judgment  the 
judgment  of  the  circuit  court  should  be  affirmed. 

Judgment  affirmed. 

NOTE. 

Hasbrouck  v.  Milwaukee,  supra,  has  been  cited  with 
approval  in  Wisconsin  as  follows:  Hasbrouck  v.  Milwau- 
kee, 17  Wis.  266 ;  Selsby  v.  Eedlon,  19  Wis.  21 ;  Veeder 
v.  Town  of  Lima,  19  Wis.  291 ;  Hasbrouck  v.  Milwaukee, 
21  Wis.  234;  Curtis's  Admr.  v.  Whipple  and  others,  24 
Wis.  355 ;  Whiting  v.  S.  &  F.  Ey.,  etc.,  25  Wis.  216,  218 ; 
Mills  v.  Charlton,  29  Wis.  413,  415 ;  State  ex  rel.  McCur- 
dy  v.  Tappan,  29  Wis.  680,  683 ;  Blount  v.  City  of  Janes- 
ville,  31  Wis.  659 ;  Atty.-Gen.  v.  City  of  Eau  Claire,  37 
Wis.  438 ;  Kimball  v.  Town  of  Eosendale,  42  Wis.  412 ; 
Richland  County  v.  Village  of  Eichland  Center,  59  Wis. 
600;  Kennan  v.  Eundle  and  others,  81  Wis.  225;  Lund 


Opinions  of  Chief  Justice  Dixon.  144 

v.  Chippewa  County  and  others,  93  Wis.  649,  34  L.  R.  A. 
135 ;  Town  of  Winneconne  v.  Village  of  Winneconne,  111 
Wis.  17. 

It  has  been  cited  with  approval  outside  of  the  Wisconsin 
Supreme  Court  as  follows:  Hoagland  v.  Sacramento,  52 
Cal.  150 ;  Treadway  v.  Schnauber,  1  Dak.  250 ;  Stockton 
v.  Powell,  29  Fla.  36,  15  L.  R.  A.  45 ;  City  of  Emporia 
v.  Norton,  13  Kan.  586;  Lowe  v.  Harris,  112  N.  Car. 
488,  22  L.  R.  A.  386;  Bailey  v.  City  of  Raleigh,  130 
N.  Car.  209,  58  L.  R  A.  179 ;  Lancy  v.  King  County, 
15  Wash.  9,  34  L.  R.  A.  820 ;  Northern  Pac.  Ry.  v.  Rob- 
erts, 42  Fed.  737  (West  Dist.  Wis.)  ;  Olcott  v.  The  Super- 
visors, 16  Wall.  691;  Southworth  v.  New  Orleans,  24  La. 
An.  315 ;  People  ex  rel.  Murphy  v.  Kelly,  76  N.  Y.  497, 
5  Abb.  N.  C.  468. 

It  has  been  cited  in  notes  to  the  following  cases  reported 
in  L.  R.  A.,  and  Am.  Dec.,  in  which  valuable  collections 
of  authorities  will  be  found : 

Lawyers'  Reports  Annotated :  Erskine  v.  Nelson  County 
(4  N.  Dak.  66),  27  L.  R.  A.  697;  State  ex  rel.  Bulkeley 
v.  Williams  (68  Conn.  131),  48  L.  R.  A.  479. 

American  Decisions:  De  Voss  v.  City. of  Richmond 
(18  Gratt.  338)',  98  Am.  Dec.  666;  Korah  v.  City  of  Ot- 
tawa (32  111.  121),  83  Am.  Dec.  257;  Mills  v.  Gleason 
(11  Wis.  470),  78  Am.  Dec.  729. 


145  Kellogg  v.  Chicago,  N.  W.  Ry.  Co. 


Kellogg  v.  The  Chicago  &  Northwestern  Railway  Company. 

January  Term,  1871. 
(26  Wis.   223.) 

This  action  was  brought  to  recover  damages  for  the  de- 
struction, by  fire,  of  stacks  of  hay  and  straw,  sheds  and 
buildings  belonging  to  the  plaintiff.  The  fire  was  commu- 
nicated by  sparks  or  coals  from  defendant's  engine,  to  dry 
grass,  weeds  and  willows,  on  its  right  of  way  (which  ex- 
tended about  fifty  feet  on  each  side  of  its  iron  track)  ;  and 
the  fire  passed  thence  upon  plaintiff's  pasture  and  meadow 
land,  through  dry  stubble  of  grass  and  grain,  crossing  a 
brook  about  three  feet  wide,  until  it  reached  a  hay-stack, 
and  thence  spread  to  the  other  stacks,  and  to  the  sheds  and 
buildings,  which  were  about  a  hundred  and  forty  rods  from 
where  the  fire  started.  The  fire  occurred  in  the  month  of 
November,  which  was  shown  to  be  usually  a  windy  month 
in  that  region ;  and  a  strong  wind  was  blowing  at  the  time, 
from  the  point  where  the  fire  originated,  towards  where 
the  property  was  destroyed.  The  season  was  a  dry  one, 
and  the  grass,  weeds  and  stubble  were  "very  dry."  Some 
parts  of  plaintiff's  pasture  land,  over  which  the  fire  passed, 
were  "boggy  and  uneven."  Along  the  edge  of  the  brook 
where  the  fire  crossed  it,  there  was  tall,  dry  grass.  There 
was  evidence  to  show  that  where  the  fire  began,  defendant's 
land  was  uneven,  and  that  the  grass,  weeds  and  willows 
had  not  been  removed  for  years,  if  ever.  There  was  evi- 
dence which,  on  the  other  hand,  tended  to  show  that  the 
company  was  in  the  habit  of  burning  the  grass  along  its 
track  every  year,  to  diminish  the  danger  of  accidental  fires. 
There  was  a  verdict  and  judgment  for  plaintiff,  and  de- 
fendant appealed. 
10 


Opinions  of  Chief  Justice  Dixon.  146 

The  judgment  was  affirmed,  Chief  Justice  Dixon  writing 
the  opinion  for  the  court.  Mr.  Justice  Cole  concurred 
with  him.  Mr.  Justice  Paine  dissented. 

The  following  are  the  propositions  of  law  decided  by  the 
Court : 

Where  sparks  from  defendant's  engine  set  fire  to  dry 
grass,  weeds  and  bushes,  suffered  to  remain  and  accu- 
mulate on  land  used  for  the  railway,  and  the  fire, 
spreading  upon  plaintiff's  lands,  destroyed  his  prop- 
erty, the  question  whether  defendant  was  negligent  in 
leaving  its  land  in  that  condition,  was  properly  left  to 
the  jury. 

It  was  not  error,  as  against  defendant,  to  submit  to  the 
jury  the  question  whether  plaintiff  was  also  negligent 
in  permitting  dry  stubble  and  grass  to  remain  on  his 
land,  and  in  not  having  plowed  a  sufficient  strip  ad- 
joining the  railway  to  prevent  the  spread  of  the  fire. 

The  fact  that  the  fire  would  not  have  spread  to  the  prop- 
erty destroyed  unless  the  weather  had  -been  dry  and 
the  wind  strong,  does  not  affect  defendant's  liability. 

The  fact  that  the  property  destroyed  was  distant  from 
defendant's  road,  and  that  the  flame  reached  it  only 
by  passing  through  intervening  fields,  does  not  render 
the  damages  remote,  or  prevent  a  recovery. 

^Persons  occupying  farms  along  railroads  are  entitled  to 
cultivate  and  use  them  in  the  manner  customary 
among  farmers,  and  may  recover  for  damages  by  fire 
resulting  from  the  negligence  of  the  Railway  com- 
pany, although  they  have  not  plowed  up  the  stubble, 
•or  taken  other  like  unusual  means  to  guard  against 
such  negligence. 

Negligence  of  the  plaintiff,  in  such  cases,  which  pre- 
cludes a  recovery,  is  where,  in  the  presence  of  a  seen 


147  Kellogg  v.  Chicago,  N.  W.  Ry.  Co. 

danger  (as  where  the  fire  has  been  set)  he  omits  to  do 
what  prudence  requires  to  be  done  under  the  circum- 
stances for  the  protection  of  his  property,  or  does 
some  act  inconsistent  with  its  preservation.  Where 
the  danger  is  not  seen,  but  anticipated  merely,  or  de- 
pendent on  future  events  (such  as  the  future  continu- 
ance of  defendant's  negligence),  plaintiff  is  not  bound 
to  guard  against  it  by  refraining  from  his  usual  course 
(being  otherwise  a  prudent  one)  in  the  management 
of  his  property  and  business. 

In  the  exercise  of  his  lawful  rights,  every  person  has  a 
right  to  presume  that  every  other  will  perform  his 
duty  and  obey  the  law,  and  it  is  not  negligence  for 
him  to  assume  that  he  is  not  exposed  to  a  danger  which 
can  only  come  to  him  through  a  disregard  of  law  on 
the  part  of  some  other  person. 

The  maxim,  causa  proximo,  non  remota  spectatur,  is  not 
controlled  by  time  or  distance,  nor  by  the  succession 
of  events.  An  efficient,  adequate  cause  being  found, 
must  be  deemed  the  true  cause,  unless  some  other 
cause,  not  incidental  to  it,  but  independent  of  it,  is 
shown  to  have  intervened  between  it  and  the  result. 
The  maxim  includes  liability  for  all  actual  injuries 
which  were  the  natural  and  probable  result  of  the 
wrongful  act  or  omission  complained  of,  or  were 
likely  to  ensue  from  it  under  ordinary  circumstances. 
Byan  v.  K  Y.  Central  E.  K.  (35  K  Y.  210),  and 
Pa.  E.  E,  v.  Kerr  (62  Pa.  St.  353,  or  1  Am.  E.  431), 
examined  and  disapproved ;  Perley  v.  Eastern  E.  E. 
Co.,  98  Mass.  414,  and  others,  approved  and  followed. 

The  drouth  and  high  wind  in  this  case  held  not  to  be  ex- 
traordinary, but  ordinary  circumstances,  within  the 
meaning  of  this  rule. 


Opinions  of  Chief  Justice  Dixon.  148 

This  court  will  not  reverse  for  errors  in  the  instructions 
or  rulings  of  the  court,  where  it  is  clear  that  the  ver- 
dict and  judgment  could  not  have  been  different  on  the 
evidence. 

If  a  party  wishes  the  jury  instructed  upon  a  point  not 
embraced  in  the  general  charge  given,  or  if  an  instruc- 
tion merely  requires  modification  in  some  particular 
or  particulars  not  materially  affecting  its  general  cor- 
rectness, an  exception  thereto  should  be  particular,  so 
as  to  call  the  attention  of  the  court  to  the  precise  point 
of  objection. 

Dixon,  Chief  Justice.  A11  the  authorities  agree  that 
the  presence  of  dry  grass  and  other  inflammable  material 
upon  the  way  of  a  railroad,  suffered  to  remain  there  by  the 
company  without  cause,  is  a  fact  from  which  the  jury  may 
find  negligence  against  the  company.  The  cases  in  Illinois 
cited  and  relied  upon  by  counsel  for  the  defendant  hold 
this.  They  hold  that  it  is  proper  evidence  for  the  jury, 
who  may  find  negligence  from  it,  although  it  is  not  negli- 
gence per  se.  Railroad  Co.  v.  Shanefelt,  47  111.  497 ;  Illi- 
nois Central  Railroad  Co.  v.  Nunn,  51  id.  78 ;  Railroad 
Co.  v.  Mills,  42  id.  407 ;  Bass  v.  Railroad  Co.,  28  id.  9. 
The  court  below  ruled  in  the  same  way,  and  left  it  for  the 
jury  to  say  whether  the  suffering  of  the  combustible  mate- 
rial to  accumulate  upon  the  right  of  way  and  sides  of  the 
track,  or  the  failure  to  remove  the  same,  if  the  jury  so 
found,  was  or  was  not,  under  the  circumstances,  negligence 
on  the  part  of  the  company.  ~No  fault  can  be  found  with 
the  instructions  in  this  respect ;  and  the  next  question  is  as 
to  the  charge  of  the  court,  and  its  refusal  to  charge,  respect- 
ing the  alleged  negligence  of  the  plaintiff  contributing,  as 
it  is  said,  to  the  loss  or  damage  complained  of.  This  is 


149  Kellogg  v.  Chicago,  N.  W.  Ry.  Co. 

the  leading  and  most  important  question  in  the  case.  It 
is  a  question  upon  which  there  is  some  conflict  of  authority. 

The  facts  were,  that  the  plaintiff  had  permitted  the 
weeds,  grass  and  stubble  to  remain  upon  his  own  land  im- 
mediately adjoining  the  railway  of  the  defendant.  They 
were  dry  and  combustible,  the  same  as  the  weeds  and  grass 
upon  the  right  of  way,  though  less  in  quantity,  because 
within  the  right  of  way  no  mowing  had  ever  been  done, 
and  the  growth  was  more  luxuriant  and  heavy.  The 
plaintiff  had  not  cut  and  removed  the  grass  and  weeds  from 
his  own  land,  nor  plowed  in  or  removed  the  stubble,  so  as 
to  prevent  the  spread  of  fire  in  case  the  same  should  be 
communicated  to  the  dry  grass  and  weeds  upon  the  rail- 
road, from  the  engines  operated  by  the  defendant.  The 
grass,  weeds  and  stubble  upon  the  plaintiff's  land,  together 
with  the  wind,  which  was  blowing  pretty  strongly  in  that  di- 
rection, served  to  carry  the  fire  to  the  stacks,  buildings  and 
other  property  of  the  plaintiff,  which  were  destroyed  by  it, 
and  which  were  situated  some  distance  from  the  railroad. 
The  fire  originated  within  the  line  of  the  railroad,  and  near 
the  track,  upon  the  land  of  the  defendant.  It  was  commu- 
nicated to  the  dry  grass  and  other  combustible  material 
there,  by  coals  of  fire  dropped  from  an  engine  of  the  de- 
fendant passing  over  the  road.  The  evidence  tends  very 
clearly  to  establish  these  facts,  and  under  the  instructions 
the  jury  must  have  so  found.  The  plaintiff  is  a  farmer, 
and,  in  the  particulars  here  in  controversy,  conducted  his 
farming  operations  the  same  as  other  farmers  throughout 
the  country.  It  is  not  the  custom  anywhere  for  farmers 
to  remove  the  grass  or  weeds  from  their  waste  lands,  or  to 
plough  in  or  remove  their  stubble,  in  order  to  prevent  the 
spread  of  fire  originating  from  such  causes. 

Upon  this  question,  as  upon  the  others,  the  court  charged 


Opinions  of  Chief  Justice  Dixon.  150 

the  jury  that  it  was  for  them  to  say  whether  the  plaintiff 
was  guilty  of  negligence,  and,  if  they  found  he  was,  that 
then  he  could  not  recover.  On  the  other  hand,  the  defend- 
ant asked  an  instruction  to  the  effect  that  it  was  negligence 
per  se  for  the  plaintiff  to  leave  the  grass,  weeds  and  stubble 
upon  his  own  land,  exposed  to  the  fire  which  might  be  com- 
municated to  them  from  the  burning  grass  and  weeds  on 
the  defendant's  right  of  way,  and  that  for  this  reason  there 
could  be  no  recovery  on  the  part  of  the  plaintiff.  The 
court  refused  to  give  the  instruction,  and,  I  think,  rightly. 
The  charge  upon  this  point,  as  well  as  upon  the  other,  was 
quite  as  favorable  to  the  defendant  as  the  law  will  permit, 
and  even  more  so  than  some  of  the  authorities  will  justify. 
The  authorities  upon  this  point  are,  as  I  have  said,  some- 
what in  conflict.  The  two  cases  first  above  cited  from  Illi- 
nois hold  that  it  is  negligence  on  the  part  of  the  adjoining 
land  owner  not  to  remove  the  dry  grass  and  combustible  ma- 
terial from  his  own  land  under  such  circumstances,  and 
that  he  cannot  recover  damages  where  the  loss  is  by  fire 
thus  communicated.  Those  decisions  were  by  a  divided 
court,  by  two  only  of  the  three  judges  composing  it.  They 
rest  upon  no  satisfactory  grounds,  whilst  the  reasons  found 
in  the  opinions  of  the  dissenting  judge  are  very  strong  to 
the  contrary.  Opposed  to  these  are  the  unanimous  de- 
cisions of  the  courts  of  New  York,  and  of  the  English  court 
of  exchequer,  upon  the  identical  point.  Cook  v.  Cham- 
plain  Transportation  Co.,  1  Denio  91 ;  Vaughan  v.  Taff 
Vale  Railway  Co.,  3  Hurl,  and  Nor.  743 ;  Same  v.  Same, 
5  id.  679.  These  decisions,  though  made  many  years  be- 
fore the  Illinois  cases  arose,  are  not  referred  to  in  them. 
The  last  was  the  same  case  on  appeal  in  the  exchequer  cham- 
ber, where,  although  the  judgment  was  reversed,  it  was 
upon  another  point.  This  one  was  not  questioned,  but 


151  Kellogg  v.  Chicago,  N.  W.  Ry.  Co. 

was  affirmed,  as  will  be  seen  from  the  opinions  of  the 
judges,  particularly  of  Cockburn,  C.  J.,  and  Willes,  J. 
The  reasoning  of  those  cases  is,  in  my  judgment,  unanswer- 
able. I  do  not  see  that  I  can  add  anything  to  it.  They 
show  that  the  doctrine  of  contributory  negligence  is  wholly 
inapplicable — that  no  man  is  to  be  charged  with  negligence 
because  he  uses  his  own  property  or  conducts  his  own  af- 
fairs as  other  people  do  theirs,  or  because  he  does  not 
change  or  abandon  such  use,  and  modify  the  management 
of  his  affairs,  so  as  to  accommodate  himself  to  the  negli- 
gent habits  or  gross  misconduct  of  others,  and  in  order  that 
such  others  may  escape  the  consequence  of  their  own  wrong, 
and  continue  in  the  practice  of  such  negligence  or  miscon- 
duct. In  other  words,  they  show  that  no  man  is  to  be  de- 
prived of  the  free,  ordinary  and  proper  use  of  his  own  prop- 
erty by  reason  of  the  negligent  use  which  his  neighbor  may 
make  of  his.  He  is  not  his  neighbor's  guardian  or  keeper, 
and  not  to  answer  for  his  neglect.  The  case  put  by  the 
court  of  New  York,  of  the  owner  of  a  lot  who  builds  upon 
it  in  close  proximity  to  the  shop  of  a  smith,  is  an  apt  illus- 
tration. Or  let  us  suppose  that  A.  and  B.  are  proprietors 
of  adjoining  lands.  A.  has  a  dwelling  house,  barns  and 
other  buildings  upon  his,  and  cultivates  some  portion  of  it. 
B.  has  a  planing  mill,  or  other  similar  manufacturing  es- 
tablishment, upon  his,  near  the  line  of  A.,  operated  by 
steam.  B.  is  a  careless  man,  habitually  so,  and  suffers 
shavings  and  other  inflammable  material  to  accumulate 
about  his  mills  and  up  to  the  line  of  A.,  and  so  near  to  the 
fire  in  the  mill  that  the  same  is  liable  at  any  time  to  be 
ignited.  A.  knows  this,  and  remonstrates  with  B.,  but 
B.  persists.  Upon  A.'s  land,  immediately  adjoining  the 
premises  of  B.,  it  is  unavoidable,  in  the  ordinary  course  of 
husbandry,  or  of  A.'s  use  of  the  land,  that  there  should  be 


Opinions  of  Chief  Justice  Dixon.  152 

at  certain  seasons  of  the  year,  unless  A.  removes  them,  dry 
grass  and  stubble,  which,  when  set  fire  to,  will  endanger 
his  dwelling  house  and  other  property  of  a  combustible  na- 
ture, especially  with  the  wind  blowing  in  a  particular  direc- 
tion at  the  time.     It  may  be  a  very  considerable  annual 
expense  and  trouble  to  A.  to  remove  them.     It  may  require 
considerable  time  and  labor,  a  useless  expenditure  to  him, 
diverting  his  attention  from  other  affairs  and  duties.     The 
constant  watching  to  guard  against  the  carelessness  and 
negligence  of  B.  is  a  great  tax  upon  his  time  and  patience. 
The  question  is :  Does  the  law  require  this  of  him,  lest,  in 
some  unguarded  moment,  the  fire  should  break  out,  his 
property  be  destroyed,  and  he  is  remediless  ?     If  the  law 
does  so  require,  if  it  imposes  on  him  the  duty  of  guarding 
against  B.'s  negligence,  and  of  seeing  that  no  injury  shall 
come  from  it,  or,  if  it  does  come,  that  it  shall  be  his  fault 
and  not  B.'s,  it  is  important  to  know  upon  what  principle 
it  is  that  the  burden  is  thus  shifted  from  B.  to  himself.     I 
know  of  no  such  principle,  and  doubt  whether  any  court 
could  be  found  deliberately  to  announce  or  affirm  it.     And 
yet  such  is  the  result  of  holding  the  doctrine  of  contributory 
negligence  applicable  to  such  a  case.     A.  is  compelled  all 
his  life-time,  at  much  expense  and  trouble,  to  watch  and 
guard  against  the  negligence  of  B.,  and  to  prevent  any  in- 
juries arising  from  it,  and  for  what  ?     Simply  that  B.  may 
continue  to  indulge  in  such  negligence  at  his  pleasure.  And 
he  does  so  with  impunity.     The  law  affords  no  redress 
against  him.    If  the  property  is  destroyed,  it  is  because  of 
the  combustible  material  on  A.'s  land,  which  carries  the 
fire,  and  which  is  A.'s  fault,  and  A.  is  the  loser.  No  loss  can 
ever  possibly  overtake  him.    A.  is  responsible  for  the  negli- 
gence, but  not  he  himself.     He  kindles  the  fire,  and  A. 
stands  guard  over  it.     He  sets  the  dangerous  element  in 


153  Kellogg  v.  Chicago,  N.  W.  R?.  Co. 

motion,  and  uses  and  operates  it  for  his  own  benefit  and 
advantage,  negligently  as  he  pleases,  whilst  A.,  with  sleep- 
less vigilance,  sees  to  it  that  no  damage  is  done,  or  if  there 
is,  that  he  will  be  the  sufferer.  This  is  the  reductio  ad 
absurdum  of  applying  the  doctrine  of  contributory  negli- 
gence in  such  a  case.  And  it  is  absurd,  I  care  not  by  what 
court  or  where  applied. 

Now  the  case  of  a  railroad  company  is  like  the  case  of 
an  individual.  Both  stand  on  the  same  footing  with  re- 
spect to  their  rights  and  liabilities.  Both  are  engaged  in 
the  pursuit  of  a  lawful  business,  and  are  alike  liable  for 
damage  or  injury  caused  by  their  negligence  in  the  prose- 
cution of  it.  Fire  is  an  agent  of  an  exceedingly  danger- 
ous and  unruly  kind,  and,  though  applied  to  a  lawful  pur- 
pose, the  law  requires  the  utmost  care  in  the  use  of  all  rea- 
sonable and  proper  means  to  prevent  damage  to  the  prop- 
erty of  third  persons.  This  obligation  of  care,  the  want 
of  which  constitutes  negligence  according  to  the  circum- 
stances, is  imposed  upon  the  party  who  uses  the  fire,  and 
not  upon  those  persons  whose  property  is  exposed  to  dan- 
ger by  reason  of  the  negligence  of  such  party.  •  Third  per- 
sons are  merely  passive,  and  have  the  right  to  remain  so, 
using  and  enjoying  their  own  property  as  they  will  so  far 
as  responsibility  for  the  negligence  of  the  party  setting  the 
unruly  and  destructive  agent  in  motion  is  concerned.  If 
he  is  negligent,  and  damage  ensues,  it  is  his  fault  and  can- 
not be  theirs,  unless  they  contribute  to  it  by  some  unlawful 
or  improper  act.  But  the  use  of  their  own  property  as 
best  suits  their  own  convenience  and  purposes,  or  as  other 
people  use  theirs,  is  not  unlawful  or  improper.  It  is  per- 
fectly lawful  and  proper,  and  no  blame  can  attach  to  them. 
He  cannot,  by  his  negligence,  deprive  them  of  such  use,  or 
say  to  them,  "Do  this  or  that  with  your  property,  or  I  will 


Opinions  of  Chief  Justice  Dixon.  154 

destroy  it  by  the  negligent  and  improper  use  of  my  fire." 
The  fault,  therefore,  in  both  a  legal  and  moral  point  of 
view,  is  with  him,  and  it  would  be  something  strange  should 
the  law  visit  all  the  consequences  of  it  upon  them.  The 
law  does  not  do  so,  and  it  is  an  utter  perversion  of  the 
maxim  sic  utere  iuo,  etc.,  thus  to  apply  it  to  the  persons 
whose  property  is  destroyed  by  the  negligence  of  another. 
It  is  changing  it  from  "So  use  your  own  as  not  to  injure 
another's  property,"  to  "So  use  your  own  that  another 
shall  not  injure  your  property,"  by  his  carelessness  and 
negligence.  It  would  be  a  very  great  burden  to  lay  upon 
all  the  farmers  and  proprietors  of  lands  along  our  exten- 
sive lines  of  railway,  were  it  to  be  held  that  they  are  bound 
to  guard  against  the  negligence  of  the  companies  in  this 
way — that  the  law  imposes  this  duty  upon  them.  Always 
burdensome  and  difficult,  it  would,  in  numerous  instances, 
be  attended  with  great  expense  and  trouble.  Changes  would 
have  to  be  made  in  the  mode  of  use  and  occupation,  and 
sometimes  the  use  abandoned,  or  at  least  all  profitable  use. 
Houses  and  buildings  would  have  to  be  removed,  and  valu- 
able timber  cut  down  and  destroyed.  These  are,  in  gen- 
eral, very  combustible,  especially  at  particular  seasons  of 
the  year.  The  presence  of  these  along  or  near  the  line  of 
the  railroad  would  be  negligence  in  the  farmer  or  proprie- 
tor. In  the  event  of  their  destruction  by  the  negligence  of 
the  company,  he  would  be  remediless.  He  must  remove 
them,  therefore,  for  his  own  safety.  His  only  security 
consists  in  that.  He  must  remove  everything  combustible 
from  his  own  land  in  order  that  the  company  may  leave  all 
things  combustible  on  its  land  and  exposed  without  fear  of 
loss  or  damage  to  the  company  to  being  ignited  at  any  mo- 
ment by  the  fires  from  its  own  engines.  If  this  duty  is  im- 
posed upon  the  farmers  and  other  proprietors  of  adjoining 


155  Kellogg  v.  Chicago,  N.  W.  Ry. 

lands,  why  not  require  them  to  go  at  once  to  the  railroad 
and  remove  the  dry  grass  and  other  inflammable  material 
there  ?  There  is  the  origin  of  the  mischief,  and  there  the 
place  to  provide  securities  against  it.  It  is  vastly  easier, 
by  a  few  slight  measures  and  a  little  precaution,  to  prevent 
the  conflagration  in  the  first  place,  than  to  stay  its  ravages 
when  it  has  once  begun,  particularly  if  the  wind  be  blow- 
ing at  the  time,  as  it  generally  is  upon  our  open  prairies. 
With  comparatively  little  trouble  and  expense  upon  the 
road  itself,  a  little  labor  bestowed  for  that  purpose,  the 
mischief  might  be  remedied.  And  this  is  an  additional 
reason  why  the  burden  ought  not  to  be  shifted  from  the 
company  upon  the  proprietor  of  the  adjoining  land;  al- 
though, if  it  were  otherwise,  it  certainly  would  not  change 
what  ought  to  be  the  clear  rule  of  law  upon  the  subject. 

And  the  following  cases  will  be  found  in  strict  harmony 
with  those  above  cited,  and  strongly  sustain  the  principles 
there  laid  down,  and  for  which  I  contend :  Martin  v.  West- 
ern Union  Railroad  Co.,  23  Wis.  437 ;  Piggott  v.  Eastern 
Counties  R.  R.  Co.,  54  E.  C.  L.  228;  Smith  v.  London 
and  Southwestern  R.  R.  Co.,  Law  Reports,  5  C.  P.  98 ; 
Vaughan  v.  Menlove,  7  C.  &  P.  525  (32  E.  C.  L.  613)  ; 
Hewey  v.  Nourse,  54  Me.  256;  Turberville  v.  Stampe,  1 
Ld.  Raym.  264 ;  S.  C.  1  Salk.  13 ;  Pantam  v.  Isham,  id.  19 ;. 
Field  v.  K  Y.  C.  R.  R.,  32  K  Y.  339 ;  Bachelder  v.  Hea- 
gan,  18  Maine,  32;  Barnard  v.  Poor,  21  Pick.  378;  Fero 
v.  Buffalo  and  State  Line  R.  R.  Co.,  22  K  Y.  209 ;  Fre- 
mantle  v.  The  London  and  Northwestern  R.  R.  Co.,  100 
E.  C.  L.  88;  Hart  v.  Western  Railroad  Co.,  13  Met.  99; 
Ingersoll  v.  Stockbridge  &  Pittsfield  R.  R.  Co.,  8  Allen, 
438 ;  Perley  v.  Eastern  Railroad  Co.,  98  Mass.  414;  Hook- 
sett  v.  Concord  Railroad,  38  K  H.  242 ;  McCready  v.  Rail- 
road Co.,  2  Stobh.  Law  R.  356 ;  Cleveland  v.  Grand  Trunk 


Opinions  of  Chief  Justice  Dixon.  156 

Eailway  Co.,  42  Yt.  449 ;  1  Bl.  Comm.  131 ;  Com.  Dig. 
Action  for  Negligence  (A,  6). 

It  is  true  that  some  of  these  cases  arose  under  statutes 
creating  a  liability  on  the  part  of  railroad  companies, 
but  that  does  not  affect  the  principle.  Negligence  in  the 
plaintiff,  contributing  to  the  loss,  is  a  defense  to  an  action 
under  the  statutes,  the  same  as  to  an  action  at  common  law. 
8  Allen,  440 ;  6  id.  7. 

And  the  other  objections  against  the  liability  of  the  com- 
pany, that  the  fire  set  by  its  negligence  was  the  remote  and 
not  the  proximate  cause  of  the  injury  done  to  the  plaintiff, 
because  his  property  consumed  was  situated  from  sixty- 
five  to  one  hundred  rods  from  the  place  where  the  fire 
started,  and  because  there  was  a  strong  wind  blowing  in 
that  direction  at  the  time,  are,  in  my  opinion,  equally  un- 
tenable. The  same  objections  were  taken  in  several  of  the 
cases  above  cited,  and  overruled,  and  might  have  been 
taken  in  most  of  the  others,  if  they  had  been  considered 
legitimate  grounds  of  defense.  It  would-  be  strange  in- 
deed, if  the  liability  of  a  party  for  the  negligent  destruc- 
tion of  property  by  fire  were  to  depend  upon  the  fact 
whether  he  set  fire  at  once  to  the  property,  or  whether  he 
set  fire  to  some  other  combustible  material  at  some  distance 
from  it,  but  communicating  with  it,  and  which,  it  was  ap- 
parent at  the  time,  would  inevitably,  or  almost  inevitably, 
lead  to  its  destruction.  It  was  apparent  in  this  case,  al- 
most as  apparent  and  certain  before  the  fire  was  set,  that, 
if  set  at  the  time  and  under  the  circumstances,  it  would 
prove  destructive  of  the  property  of  the  plaintiff  or  of 
others,  as  it  was  afterwards  that  it  had  so  proved.  It  re- 
quired no  prophetic  vision  to  see  this.  It  was  a  matter 
within  the  common  experience  of  mankind.  There  were 
the  "natural  and  ordinary  means"  at  hand,  by  which  it 


157  Kellogg  v.  Chicago,  N.  W.  Ry.  Co. 

must  prove  so  destructive.  13  Met  104.  Those  means 
extended  directly  and  continuously  from  the  place  where 
the  burning  coals  from  the  engine  first  touched  the  dry 
grass  and  weeds  on  the  company's  road,  to  the  plaintiff's 
stacks,  buildings  and  other  property.  There  were  the  dry 
grass,  weeds  and  stubble  communicating  with  the  property, 
and  the  wind  blowing  in  the  direction  of  it  And  this 
condition  of  things  had  existed  for  some  time,  and  had 
been  suffered  to  exist  by  the  company.  !N"o  steps  had  been 
taken  to  remove  the  dry  grass  and  other  inflammable  sub- 
stances from  the  roads,  which,  if  they  had  been  removed, 
would  have  prevented  the  injury.  In  this  the  company 
was  at  fault,  and  it  was  its  sole  fault,  so  far  as  can  now  be 
known,  that  the  injury  took  place.  It  may  be  that  the 
wind  did  not  always  blow,  or  in  the  same  direction;  but 
at  that  season  of  the  year  the  times  of  calm  were  the  excep- 
tion. The  wind  was  liable  and  likely  to  blow,  and  greatly 
to  enhance  the  danger,  at  any  time.  The  company,  or  its 
agents  and  employees,  knew  this,  and  were  bound  to  in- 
creased care  on  that  account  And  the  argument  that  be- 
cause the  wind  blew  at  the  time,  or  because  the  same  negli- 
gence might  not  have  produced  the  injury  if  the  atmos- 
phere had  been  calm,  therefore,  the  company  is  not  liable, 
is  certainly  a  very  odd  way  of  reasoning  upon  such  a  sub- 
ject The  argument  is  neither  more  nor  less  than  this: 
that  the  greater  the  tendency  and  exposure  to  damage  from 
negligence,  the  less  the  care  and  circumspection  required 
by  law  to  guard  against  or  prevent  such  damage.  In  other 
words,  that  the  obligation  of  diligence  decreases  in  propor- 
tion as  the  necessity  for  its  exercise  increases.  The  com- 
pany may  neglect  its  duty,  and  set  fires  and  destroy  prop- 
erty, on  a  windy  day  or  night  when  the  danger  is  increased, 
and  it  shall  not  be  liable ;  whereas,  if  it  do  the  same  thing 


^Opinions  of  Chief  Justice  Dixon.  158 

at  a  time  when  the  wind  is  not  blowing  and  the  danger  is 
diminished,  it  shall  be  liable.  It  may  be  that  this  mode  of 
reasoning  merits  the  compliment  of  ingenuity  in  the  en- 
deavor to  avoid  the  liability  of  a  party  for  wrongs  commit- 
ted by  him,  but  it  clearly  cannot  be  sound.  The  author- 
ities all  repudiate  it,  and  it  requires  no  effort  of  one's  nat- 
ural sense  of  reason  and  justice  to  do  so.  The  winds  and 
the  dryness  and  the  combustibility  of  the  substances  upon 
the  surface  of  the  land  are  what  create  the  danger,  and  im- 
pose upon  the  company  the  obligation  of  care  and  circum- 
spection in  the  use  and  management  of  its  fire.  It  is  im- 
possible to  separate  the  idea  of  such  obligation  or  duty  from 
these  natural  causes  or  agencies  from  which  it  arises.  If 
the  materials  on  the  surface  of  the  earth  never  became  dry 
and  combustible,  and  the  winds  never  blew,  the  obligation 
would  never  have  existed.  It  springs  from  these  natural 
causes  and  agencies  and  is  an  obligation  to  guard  against 
the  evil  effects  produced  by  them,  by  the  employment  of 
such  reasonable  means  and  appliances  as  will  prevent  the 
escape  or  communication  of  the  fire.  To  say,  therefore, 
that  the  obligation  ceases  to  exist,  or  that  the  party  using 
the  fire  is  justified  in  omitting  the  means  or  appliances  to 
prevent  its  escape  or  communication,  because  of  the  pres- 
ence of  such  natural  causes  or  agencies,  is  to  lose  sight  en- 
tirely of  the  ground  upon  which  the  obligation  rests.  The 
argument,  if  it  proves  anything,  proves  that  there  exists  no 
obligation  or  duty  at  all  in  any  such  case.  It  disproves 
itself  by  proving  too  much. 

But  we  are  referred  to  the  case  of  Ryan  v.  New  York 
Central  Railroad  Co.,  35  N".  Y.  210,  and  the  recent  one  in 
the  supreme  court  of  Pennsylvania.  The  Pennsylvania 
Railroad  Co.  v.  Kerr,  4  Western  Jurist,  254,  62  Pa.  St. 
353  (S.  C.  1  American  R.  431),  as  having  a  bearing  favor- 


Kellogg  v.  Chicago,  N.  W.  Ry.  Co. 

able  to  the  company  upon  the  questions  here  presented. 
The  facts  of  those  cases  so  entirely  distinguish  them  from 
the  present,  that  it  seems  hardly  necessary  to  comment  upon 
them.  The  point  decided  in  each  case  was,  that  when  the 
fire  is  negligently  communicated  to  one  building,  and  it  de- 
stroyed, and  subsequently  another  distinct  and  separate 
building  is  set  fire  to  and  destroyed  by  sparks  from  that, 
the  negligent  party  is  not  liable  in  damages  for  the  destruc- 
tion of  the  latter  building.  In  those  cases  the  buildings 
were  the  property  of  different  owners,  and  not  contiguous 
to  each  other.  In  deciding  them,  the  courts  professed  to  act 
on  the  maxim  causa  proxima  non  remota  spectatur;  and  in 
the  last  one  the  court  say :  "The  maxim,  however,  is  not  to 
be  controlled  by  time  or  distance,  but  by  the  succession  of 
events"  The  point  was,  that  the  burnings  were  distinct 
and  separate,  a  series  of  events  succeeding  one  another.  In 
the  present  case  there  was  but  one  burning,  one  continuous 
conflagration  from  the  time  the  fire  was  set  on  the  railroad 
until  the  plaintiff's  property  was  destroyed.  The  combus- 
tible material  extended  and  the  ground  was  burned  over, 
all  the  way  from  the  railroad  to  the  plaintiff's  property; 
and  the  fire,  driven  by  the  wind,  was  carried  to  his  prop- 
erty in  that  manner.  There  was  no  distinct  or  separate 
setting  fire  to  or  burning  of  the  stacks  or  buildings,  and 
then  a  communication  of  the  fire  by  sparks  through  the 
air  from  one  stack  or  building  to  another.  There  was  no 
succession  of  events,  but  only  one  event. 

The  facts  of  this  case  are  altogether  like  those  of  the 
case  of  Field  v.  1ST.  Y.  C.  E.  R,  supra,  which  is  referred 
to  approvingly  in  Ryan  v.  New  York  Central  R.  R.  Co. 
It  was  not  the  intention  of  the  court,  therefore,  in  the  lat- 
ter case,  to  overrule  the  former,  which,  like  the  present,  is 
clearly  distinguishable. 


Opinions  of  Chief  Justice  Dixon.  160 

But  the  doctrine  of  those  cases  has  not  received  the  unan- 
imous assent  of  the  courts.  It  is  directly  opposed  by  the 
decisions  in  Massachusetts  and  New  Hampshire,  above 
cited.  In  98  Mass.  414,  the  case  was  where  fire  was 
set  by  a  spark  from  an  engine  to  grass  near  the  track,  and 
spread  in  a  direct  line,  without  any  break,  across  land  of 
several  different  proprietors,  and  a  highway,  to  the  wood- 
land of  the  plaintiff,  half  a  mile  distant  from  the  railroad, 
and  burned  large  quantities  of  wood.  It  was  held  that  the 
railroad  company  was  responsible.  In  that  case  the  case 
of  Ryan  v.  !N"ew  York  Central  Railroad  Co.  was  cited,  and 
the  court  commented  upon  it  as  follows:  "In  that  case  a 
distinction  is  made  between  proximate  and  remote  dam- 
ages. The  fire  was  communicated  from  defendant's  loco- 
motive to  their  woodshed,  and  thence,  by  sparks,  one  hun- 
dred and  thirty  feet,  to  the  plaintiff's  house;  and  it  was 
held  that  the  plaintiff  could  not  recover,  because  the  injury 
was  a  remote  and  not  a  proximate  consequence  of  the  care- 
lessness of  the  defendants  in  permitting  their  fire  to  escape. 
Our  own  cases  above  referred  to,  are  not  noticed  in  the 
opinion.  Kor  does  the  opinion  draw  any  line  of  distinc- 
tion between  what  is  proximate  and  what  is  remote;  and 
such  a  line  is  not  obvious  in  that  case.  If,  when  the  cin- 
der escapes  through  the  air,  the  effect  which  it  produces 
upon  the  first  combustible  substance  against  which  it 
strikes,  is  proximate,  the  effect  must  continue  to  be  proxi- 
mate, as  to  everything  which  the  fire  consumes  in  its  direct 
course.  This  is  so,  whether  we  regard  the  fire  as  a  combi- 
nation of  the  burning  substances  with  the  oxygen  of  the 
air,  or  look  merely  at  its  visible  action  and  effect.  As  mat- 
ter of  fact,  the  injury  to  the  plaintiff  wras  as  immediate  and 
direct  as  an  injury  would  have  been  which  was  caused  by 
a  bullet,  fired  from  the  train,  passing  over  the  intermediate 


161  Kellogg  v.  Chicago,  N.  W.  Ry.  Co. 

lots,  and  wounding  the  plaintiff  as  lie  stood  upon  his  own 
lot.  It  is  as  much  so  as  pain  and  disability  are  proximate 
effects  of  an  injury,  though  they  occur  at  intervals,  through 
successive  years  after  the  injury  was  received.  Yet  these 
are  called  proximate  effects,  though  the  actual  effects  of 
the  injury  may  be  greatly  modified,  in  every  case,  by  bodily 
constitution,  habits  of  life,  and  accidental  circumstances." 

And  it  is  worthy  of  remark,  too,  that  in  the  Pennsylvania 
case,  as  well  as  the  New  York  one,  there  is  no  reference  to 
the  Massachusetts  decisions,  nor  to  the  English  common-law 
cases  there  cited. 

The  exception  to  the  charge  directing  the  jury  to  allow 
interest  on  the  damages,  is  not  urged  here.  It  was  held,, 
in  the  case  of  Chapman  et  al  v.  Chicago  and  Northwestern 
Railway  Co.,  just  decided,  that  such  direction  was  proper. 

I  am  of  opinion,  therefore,  upon  the  whole  case,  that 
there  was  no  error  of  which  the  defendant  can  justly  com- 
plain, and  that  the  judgment  should  be  affirmed. 

Cole,  J.  I  concur  with  the  chief  justice  that  there  was 
no  error  in  the  rulings  of  the  court  below. 

On  motion  by  defendant  for  rehearing,  the  following 
opinion  was  filed  September  21,  1871: 

DIXON,  Chief  Justice. 

The  argument  in  support  of  the  motion  for  a  rehearing 
is  certainly  most  able  and  dignified,  and  brings  out  with 
the  greatest  clearness  and  force  all  that  can  well  be  said  in 
opposition  to  the  views  expressed  by  the  majority  of  'the 
court.  Courtesy  and  a  sense  of  our  own  obligation  require 
this  statement.  It  is  no  small  privilege,  but  one  greatly 
to  be  esteemed,  when,  upon  questions  of  this  nature,  which 
11 


Opinions  of  Chief  Justice  Dixon.  162 

are  comparatively  new  and  as  yet  unsettled  by  many  direct 
authorities,  the  court  is  required  to  retrace  its  steps  and 
verify  the  correctness  of  its  conclusions,  or  to  acknowledge 
its  errors,  in  the  light  of  such  an  argument.  And  thus, 
though  our  views  remain  unchanged,  our  thanks  are  still 
due  to  counsel  for  the  ability  and  learning  they  have  dis- 
played and  the  assistance  they  have  rendered  in  the  investi- 
gation and  decision  of  the  important  questions  involved  in 
the  action. 

It  is  not  the  purpose  of  this  opinion  to  re-examine,  or 
again  to  discuss  at  any  length,  the  questions  which  were 
considered  in  the  former  one.  They  were  there  so  fully  con- 
sidered as  to  make  this  unnecessary  and  improper.  A 
statement  of  the  points  adhered  to,  with  some  additional 
reasons,  may  be  proper;  and  some  consideration  of  those 
raised  on  the  motion  and  now  first  pressed  upon  our  atten- 
tion, and  of  the  authorities  relied  on,  seems  also  to  be  re- 
quired. 

The  position  that  there  was  negligence  on' the  part  of  the 
railway  company  in  not  removing  the  dry  grass  and  other 
combustible  material  from  the  track,  or  evidence  tending 
strongly  to  show  and  from  which  the  jury  might  find  it, 
is  still  adhered  to. 

It  was  negligence  of  that  continuous  kind  spoken  of  by 
the  learned  counsel  as  "consisting  in  the  omission  to  per- 
form a  duty,  whereby  the  happening  of  an  event  which  may 
prove  injurious  is  rendered  possible,"  and  which  they 
frankly  concede  the  authorities  declare  to  be  actionable, 
provided  "the  damages  be  such  as  would  result  from  the 
event  under  ordinary  circumstances,"  or  such  as  are  the 
natural  and  proximate  consequence  of  the  act  or  omission 
•complained  of.  It  wa's,  therefore,  present  negligence,  or 
negligence  existing  at  the  time  of  the  injury,  and  by  which 


163  Kellogg  v.  Chicago,  N.  W.  Ry.  Co. 

it  was  produced,  as  much  so  as  if  at  that  time,  or  immedi- 
ately before,  the  company  had  caused  or  permitted  the  dry 
grass  and  other  inflammable  substances  to  be  placed  upon 
the  track,  well  knowing  the  dangerous  tendencies  of  such 
act  or  permission,  and  the  injurious  consequences  which 
might  ensue  to  the  property  of  others  from  the  taking  and 
communication  of  the  fire.  All  the  cases  agree  that  the  pres- 
ence of  such  combustible  material  upon  the  track,  where, 
with  the  utmost  precautions  to  guard  against  the  escape  of 
sparks  and  burning  coals  from  the  engine,  it  is  subject  to 
and  frequently  does  take  fire,  and  where  there  is  nothing 
incombustible  upon  the  line  of  the  company's  road  and  be- 
tween its  land  and  the  lands  of  adjoining  proprietors  to 
prevent  the  spread  of  fire  or  stay  the  mischief,  is  a  circum- 
stance from  which  the  fact  of  negligence  may  be  found  by 
the  jury.  The  company  act  with  full  knowledge  of  the 
peril,  and  knowingly  assume  the  risk.  In  Vaughan  v.  Taff 
Valley  Railway  Co.,  cited  in  the  former  opinion  (3  H.  & 
!N".  743),  the  judge  told  the  jury  that  he  was  prepared  to 
decide  that  the  defendants  were  liable,  and  he  directed 
them,  that  if,  to  serve  his  own  purposes,  a  man  does  a  dan- 
gerous thing,  whether  he  takes  precautions  or  not,  and  mis- 
chief ensues,  he  must  bear  the  consequences ;  that  running 
engines  which  cast  forth  sparks  is  a  thing  intrinsically  dan- 
gerous, and  that  if  a  railway  engine  is  used  which,  in  spite 
of  the  utmost  care  and  skill  on  the  part  of  the  company  and 
their  servants,  is  dangerous,  the  owners  must  pay  for  the 
damage  occasioned  thereby.  His  lordship  pointed  out  to 
them  that  by  keeping  the  grass  on  the  banks  of  the  railway 
close  cut,  or  by  having  the  banks  formed  of  gravel  or  sand 
so  as  to  make  a  non-inflammable  belt,  all  danger  might  be 
avoided;  and  he  asked  them  whether  they  did  not  think 
there  was  inevitable  negligence  in  the  use  of  a  dangerous 


Opinions  of  Chief  Justice  Dixon.  164 

thing  calculated  to  do,  and  which  did  cause  mischief.  And 
this  direction  was  sustained  by  the  court  in  bank,  on  a  rule 
to  show  cause  why  a  new  trial  should  not  be  granted,  and 
approved  on  appeal  to  the  exchequer  chamber. 

And  the  majority  of  the  court  also  still  adhere  to  the 
position  that  the  failure  of  the  plaintiff  to  remove  the  dry 
grass  or  stubble  from  his  own  land  in  order  to  prevent  the 
spread  or  communication  of  fire  set  by  the  default  or  mis- 
conduct of  the  defendant,  was  not  wrongful  and  improper 
on  his  part,  not  a  culpable  omission  of  duty  by  which  he 
may  be  said  to  have  co-operated  in  the  destruction  of  his 
own  property.  We  still  think  that  the  law  imposed  no  such 
duty  upon  him.  In  the  exercise  of  his  lawful  rights,  every 
man  has  a  right  to  act  on  the  belief  that  every  other  per- 
son will  perform  his  duty  and  obey  the  law;  and  it  is  not 
negligence  to  assume  that  he  is  not  exposed  to  a  danger 
which  can  only  come  to  him  through  a  disregard  of  law  on 
the  part  of  some  other  person.  Jetter  v.  New  York  &  Har- 
lem E.  E.  Co.,  2  Keyes,  154;  Earhart  v.  Youngblood,  27 
Pa.  St.  332.  The  rule  of  law  on  this  subject,  sustained  by 
numerous  authorities,  is  well  stated  in  Shearman  and  Eed- 
field  on  Negligence,  sec.  31,  as  follows:  "As  there  is  a 
natural  presumption  that  every  one  will  act  with  due  care, 
it  cannot  be  imputed  to  the  plaintiff  as  negligence  that  he 
did  not  anticipate  culpable  negligence  on  the  part  of  the 
defendant.  Nor  even  where  the  plaintiff  sees  that  the  de- 
fendant has  been  negligent,  is  he  bound  to  anticipate  all 
the  perils  to  which  he  may  possibly  be  exposed  by  such  neg- 
ligence, or  even  to  refrain  absolutely  from  pursuing  his 
usual  course  on  account  of  risks  to  which  he  is  probably 
exposed  by  the  defendant's  fault  Some  risks  are  taken  by 
the  most  prudent  men;  and  the  plaintiff  is  not  debarred 
from  recovery  for  his  injury,  if  he  has  adopted  the  course 


165  Kellogg  v.  Chicago,  N.  W.  Ry.  Co. 

which  most  prudent  men  would  take  under  similar  cir- 
cumstances" And  see  particularly  Newson  v.  Railroad  Co., 
29  X.  Y.  390;  Ernst  v.  Railroad  Co.,  35  K  Y.  28;  Rail- 
road Co.  v.  Ogier,  35  Pa.  St.  60 ;  Clayards  v.  Dethick,  12 
Q.  B.  439,  and  Johnson  v.  Belden,  2  Lansing,  437.  And 
in  section  6,  the  same  authors  correctly  observe  that  the 
law  makes  no  unreasonable  demands ;  that  no  one  is  guilty 
of  culpable  negligence  by  reason  of  failing  to  take  precau- 
tions which  no  other  man  would  be  likely  to  take  under  the 
same  circumstances,  even  though,  if  he  had  used  them,  the 
injury  would  certainly  have  been  avoided.  In  Vaughan  v. 
Taff  Vale  Railway  Co.,  last  above  cited,  it  appeared  that 
in  the  plaintiff's  wood  adjoining  the  railway,  "there  was  a 
great  quantity  of  dry  grass,  of  a  highly  inflammable  na- 
ture. The  wood  had  frequently  been  set  on  fire  by  sparks 
from  the  locomotives,  and  on  four  occasions  the  defendants 
had  paid  for  the  damage.  In  1853  (the  fire  in  question 
having  occurred  in  1856)  the  plaintiff  wrote  to  the  secre- 
tary of  the  company:  'No  fire  was  known  in  the  memory 
of  man  in  the  wood  before  the  Aberdon  Railway  was  made ; 
since  it  has  been  made,  four  or  five  times  the  wood  has 
been  ignited.  Any  one  looking  at  it  can  easily  satisfy  him- 
self that  in  a  dry  season  the  wood  is  in  just  about  as  safe 
a  state  as  a  barrel  of  gunpowder  at  Cyforthfa  Rolling 
Mill.'  The  plaintiff  had  taken  no  steps  to  clear  away  the 
accumulation  of  dry  grass  and  fallen  branches  in  the 
wood."  Upon  this  evidence  the  judge  refused  to  leave  the 
question  to  the  jury,  "whether  the  plaintiff  had  not  been 
guilty  of  negligence  in  permitting  the  wood  to  be  in  a  com- 
bustible state  by  not  properly  clearing  it,"  saying  that  he 
thought  "there  was  no  duty  on  the  part  of  the  plaintiff  to 
keep  his  wood  in  any  particular  state."  This  ruling  was 
affirmed  on  the  proceeding  to  show  cause  against  a  new 


Opinions  of  Chief  Justice  Dixon.  166 

trial,  in  the  following  language  by  Bramwell,  B.,  delivering 
the  judgment  of  the  court:  "It  remains  to  notice  another 
point  made  by  the  defendants.  It  was  said  that  the  plaint- 
iff's land  was  covered  with  very  combustible  vegetation,  and 
that  he  contributed  to  his  own  loss,  and  Mr.  Lloyd  very 
ingeniously  likened  the  case  to  that  of  an  overloaded  barge 
swamped  by  a  steamer.  We  are  of  opinion  this  objection 
fails.  The  plaintiff  used  his  land  in  the  natural  and  proper 
way  for  the  purposes  for  which  it  was  fit.  The  defendants 
come  to  it,  he  being  passive,  and  do  it  mischief.  In  the 
case  of  the  overloaded  barge,  the  owner  uses  it  in  an  un- 
natural and  improper  way,  and  goes  in  search  of  the  dan- 
ger, having  no  right  to  impede  another  natural  and  proper 
way  of  using  a  public  highway.  We  therefore  think  the 
direction  was  right,  the  verdict  satisfactory,  and  the  rule 
must  be  discharged." 

The  learned  counsel  strongly  combat  this  position,  and 
argue  that,  if  logically  carried  out,  the  doctrine  would  ut- 
terly abrogate  the  rule  that  a  party  cannot'  recover  dam- 
ages where,  by  the  exercise  of  ordinary  care,  he  could  have 
avoided  the  injury;  and  so,  in  the  present  case,  after  dis- 
covering the  fire,  the  plaintiff  might  have  leaned  on  his 
plow-handles  and  watched  its  progress,  without  effort  to 
stay  it,  where  such  effort  would  have  been  effectual,  and 
yet  have  been  free  from  culpable  negligence.  The  distinc- 
tion is  between  a  known,  present  or  immediate  danger, 
arising  from  the  negligence  of  another — that  which  is  im- 
minent and  certain,  unless  the  party  does  or  omits  to  do 
some  act  by  which  it  may  be  avoided,  and  a  danger  arising 
in  like  manner,  but  which  is  remote  and  possible  or  prob- 
able only,  or  contingent  and  uncertain,  depending  on  the 
course  of  future  events,  such  as  the  future  conduct  of  the 
negligent  party,  and  other  as  yet  unknown  and  fortuitous 


167  Kellogg  v.  Chicago,  N.  W.  Ry.  Co. 

circumstances.  The  difference  is  that  between  realization 
and  anticipation.  A  man  in  his  senses,  in  face  of  what 
has  been  aptly  termed  a  "seen  danger"  (Shearman  and 
Redfield,  sec.  34,  note  1),  that  is,  one  which  presently 
threatens  and  is  known  to  him,  is  bound  to  realize  it,  and 
to  use  all  proper  care  and  make  all  reasonable  efforts  to 
avoid  it,  and  if  he  does  not,  it  is  his  own  fault;  and  he 
having  thus  contributed  to  his  own  loss  or  injury,  no  dam- 
age can  be  recovered  from  the  other  party,  however  negli- 
gent the  latter  may  have  been.  But,  in  case  of  a  danger  of 
the  other  kind,  one  which  is  not  "seen"  but  exists  in  antici- 
pation merely,  and  where  the  injury  may  or  may  not  ac- 
crue, but  is  probable  or  possible  only  from  the  continued 
culpable  negligence  of  another,  there  the  law  imposes  no 
such  duty  upon  the  person  who  is  or  may  be  so  exposed, 
and  he  is  not  obliged  to  change  his  conduct  or  the  mode  of 
transacting  his  affairs,  which  are  otherwise  prudent  and 
proper,  in  order  to  avoid  such  anticipated  injuries,  or  pre- 
vent the  mischiefs  which  may  happen  through  another's 
default  and  culpable  want  of  care. 

But  the  question  chiefly  discussed  in  the  argument  of 
counsel,  and  which  may  be  said  to  be  a  new  one,  being  now 
first  presented,  is,  whether  the  damages  sustained  were  the 
natural  and  proximate  result  of  the  negligence  complained 
of,  or  whether  the  omission  to  remove  the  dry  grass  and 
vegetation  from  the  railway  track  was  negligence  with  re- 
spect to  the  property  of  the  plaintiff  which  was  destroyed 
by  the  fire.  The  questions  whether  the  damages  sustained 
were  the  natural  and  proximate  result  of  the  act  or  omis- 
sion complained  of,  whether  such  act  or  omission  consti- 
tuted negligence  with  respect  to  the  property  injured,  and 
whether  the  same  was  or  was  not  the  remote  cause  of  the 
injury,  within  the  maxim  causa  remota  non  spectatur,  all 


Opinions  of  Chief  Justice  Dixon.  168 

depend  upon  the  same  considerations,  and  come  to  one  and 
the  same  point  of  inquiry.  They  are  different  modes  of 
stating  the  same  proposition  or  subject  of  investigation. 
This  question  was  incidentally  alluded  to  in  the  former 
opinion  in  connection  with  two  recent  decisions,  one  in 
New  York  and  the  other  in  Pennsylvania.  Ryan  v.  New 
York  Central  Railroad,  35  N.  Y.  210 ;  and  Pennsylvania 
Railroad  v.  Kerr,  63  Pa.  St.  363  (1  American  R.  431). 
It  is  principally,  if  not  altogether,  upon  the  authority  of 
those  decisions  that  the  point  is  now  urged,  that  the  dam- 
ages were  remote,  and,  therefore,  not  recoverable.  It  was 
thought  sufficient  on  the  former  occasion,  to  distinguish 
those  cases  from  the  present  with  respect  to  the  principle 
upon  which  they  obviously  proceeded,  and  which  was  ex- 
pressly stated  in  the  latter  to  be,  that  the  maxim  causa 
proxima  non  remota  spectatur  was  "not  to  be  controlled  by 
time  or  distance,  but  by  the  succession  of  events."  Upon 
that  principle,  not  conceding  or  denying  its  correctness,  we 
thought  the  cases  fairly  distinguishable.  Counsel  arraign 
our  views  of  those  cases,  and  of  the  principle  upon  which 
they  were  decided,  and  say  that  "events  intervening  be- 
tween the  act  complained  of  and  the  injurious  consequence 
for  which  compensation  is  sought,  are  at  the  same  time  both 
causes  and  results;  and  the  remark  quoted  refers  to  these 
events  as  causes  and  not  as  results.  The  damage  caused  by 
the  burning  of  the  second  building  was,  in  that  case,  held 
remote,  not  because  it  stood  second  in  the  order  of  results ; 
but,  as  in  the  case  of  Ryan,  for  the  reason  that  it  was  the 
result  of  an  intervening  cause,  not  necessarily  following 
the  -first."  How  far  counsel  may  be  correct  in  this,  will  ap- 
pear from  a  perusal  of  the  opinions.  A  careful  examina- 
tion of  them  by  ourselves  discovers  no  such  qualification  of 
the  principle  as  that  the  burning  of  the  second  building 


169  Kellogg  v.  Chicago,  N.  W.  Ry.  Co. 

must  be  a  result  not  necessarily  following  the  burning  of 
the  first,  or,  as  expressed  by  counsel,  "the  result  of  an  in- 
tervening cause  not  necessarily  following  the  first."  The 
facts  of  both  cases,  and  the  entire  reasoning  of  the  judges, 
seem  to  us  very  clearly  to  show  that  such  was  not  the  view 
and  understanding  of  the  courts,  but  that  the  intention  was 
to  affirm,  as  a  naked,  unqualified  principle  of  law,  that  for 
the  burning  of  the  second  building  which  takes  fire  from 
the  first,  whether  necessarily  so  or  not,  under  ordinary  cir- 
cumstances, or  under  any  circumstances,  the  party  negli- 
gently setting  fire  to  the  first  is  not  responsible;  that  for 
such  second  burning,  as  a  mere  second  or  succeeding  event, 
without  reference  to  its  necessary  connection  with  and  de- 
pendence upon  the  first,  the  law  imposes  no  liability  upon 
the  party  negligently  causing  the  burning  of  the  first.  This 
we  understand  to  be  the  doctrine  of  succession  of  events 
established  by  those  decisions,  and  upon  which  it  was  held 
that  the  application  of  the  maxim  alone  depended.  Each 
burning,  including  the  first,  is  the  immediate  cause  of  that 
which  follows,  and  all  are  remote  as  to  the  wrongdoer,  ex- 
cept the  first  or  very  building,  structure  or  thing  to  which 
he  negligently  applies  the  torch.  The  first  fire  causes  the 
second,  and  the  second  the  third,  and  so  on,  under  all  cir- 
cumstances, and  therefore,  all  after  the  first  are  not  caused 
by  the  wrong-doer.  He  causes  only  the  first,  and  for  that 
only  can  be  held  responsible.  To  show  that  this  is  a  cor- 
rect exposition  and  true  statement  of  the  principle  estab- 
lished, let  us  briefly  examine  the  decisions.  The  facts  in 
Kerr's  case,  as  stated  in  the  opinion,  were  as  follows :  "A 
warehouse  of  one  Simpson,  situate  very  near  the  track  of 
the  company's  road,  was  set  on  fire  by  sparks  emitted  from 
a  locomotive  engine  of  the  defendants,  so  negligently  placed 
as  to  set  it  on  fire.  The  burning  of  the  warehouse  comnm- 


Opinions  of  Chief  Justice  Dixon.  170 

nicated  fire  to  a  hotel  building  situated  some  thirty-nine 
feet  from  the  warehouse,  which,  at  the  time,  was  occupied 
by  the  plaintiff  as  a  tenant,  and  it  was  consumed  with  its 
furniture,  stock  of  liquors  and  provisions ;  and  for  this  the 
plaintiff  sued  and  recovered  below.  Several  other,  discon- 
nected buildings  were  burned  at  the  same  time,  but  this  is 
in  no  way  involved  in  the  case."  Such  is  a  statement  of 
the  facts,  and  the  entire  facts  upon  which  the  court  pro- 
fessed to  adjudicate  and  to  rely.  We  notice,  in  the  first 
place,  the  statement  that  "the  burning  of  the  warehouse 
communicated  the  fire  to  a  hotel  building  situated  some 
thirty-nine  feet,"  etc.  Next  we  notice  there  is  no  allusion 
in  the  opinion,  from  first  to  last,  to  any  other  circumstance, 
ordinary  or  extraordinary,  such  as  the  blowing  of  the  wind 
or  dryness  of  the  season,  intervening  at  the  time  as  a  cause 
or  event  tending  to  increase  the  danger  or  to  carry  or  com- 
municate the  fire  to  the  hotel  building.  And,  further,  we 
observe  that  there  is  no  language  in  the  opinion  expressing, 
and  none  implying,  the  qualification  of  fact  or  of  prin- 
ciple, that  the  burning  of  the  hotel  building  did  not  neces- 
sarily follow  the  burning  of  the  warehouse,  or  was  not  an 
ordinary  and  necessary  consequence  thereof.  On  the  con- 
trary, from  the  facts  as  stated,  the  proximity  of  the  build- 
ings, and  the  reasons  and  illustrations  given  by  the  court, 
the  inference  very  clearly  is,  that  the  burning  of  the  hotel 
was  the  ordinary,  natural  and  necessary  result  of  setting 
fire  to  and  burning  of  the  warehouse.  The  opinion  says: 
"It  is  an  occurrence  undoubtedly  frequent,  that,  by  the 
careless  use  of  matches,  houses  are  set  on  fire.  One  adjoin- 
ing is  fired  by  the  first,  a  third  by  the  second,  and  so  on,  it 
might  be  for  the  length  of  a  square  or  more.  It  is  not  in 
our  experience  that  the  first  owner  is  liable  to  answer  for 
all  the  consequences.  And  there  is  good  reason  for  it.  The 


171  Kellogg  v.  Chicago,  N.  W.  Ry.  Co* 

second  and  third  houses,  in  the  case  supposed,  were  not 
burned  by  the  direct  action  of  the  match;  and  who  knows 
how  many  agencies  might  have  contributed  to  produce  the 
result  ?  Therefore,  it  would  be  illogical  to  hold  the  match 
chargeable  as  the  cause  of  what  it  did  not  do,  and  might 
not  have  done."  Now,  what  means  this  reasoning  and 
illustration,  if  not  intended  to  sustain  the  proposition  im- 
mediately afterwards  broadly  laid  down,  that  it  is  the 
succession  of  events  which  controls  the  application  of  the 
maxim?  Why  put,  for  the  sake  of  illustration,  the  case 
of  a  building  adjoining  the  building  fired,  and  to  which 
the  fire  would  communicate  itself  by  the  mere  force  of  the 
conflagration,  without  the  aid  of  the  atmosphere  to  float  or 
the  wind  to  blow  the  sparks  and  coals  ?  Why  say  that  the 
second  and  third  houses,  in  the  case  supposed,  were  not 
burned  by  the  direct  action  of  the  match,  if  it  be  not  to 
limit  the  liability  of  the  party  negligently  applying  the 
match  to  pay  for  damage  to  that  house  alone  as  the  first  in 
the  order  of  destruction,  or  in  the  series  or  succession  of 
events,  the  burning  of  each  owner's  house  being  regarded 
as  an  event  by  itself?  It  is  true,  the  question  is  asked, 
"and  who  knows  how  many  agencies  might  have  contrib- 
uted to  produce  the  result  ?"  From  this  we  imply  that  be- 
cause some  other  agencies,  known  or  unknown,  natural  or 
artificial,  may  have  contributed,  and,  indeed,  must  have 
contributed  to  produce  the  result,  therefore  the  person  by 
whose  wrong  the  fire  was  set  and  these  agencies  called  into 
action  must  escape,  and  the  innocent  sufferer  from  that 
wrong  go  unrequited.  The  oxygen  of  the  air  combining 
with  the  burning  substances  is  such  an  agency.  It  produces 
the  fire,  and  the  fire  produces  the  loss  or  destruction  of  the 
building;  but  the  efficient  cause  of  both  the  fire  and  the 
loss  is  the  wrong  of  the  individual  who  sets  the  fire.  We 


Opinions  of  Chief  Justice  Dixon.  172 

consider  the  rule,  or  the  application  of  the  maxim,  as  hav- 
ing been  correctly  stated  by  Thomas,  J.,  in  Marble  v.  City 
of  Worcester,  4  Gray,  412 :  "Having  discovered  an  effi- 
cient, adequate  cause,  that  is  to  be  deemed  the  true  cause, 
unless  some  new  cause,  not  incidental  to,  but  independent 
of,  the  first,  shall  be  found  to  intervene  between  it  and  the 
result."  And  surely  it  would  seem  to  us,  the  combination 
of  the  oxygen,  the  communication  of  the  fire  by  the  mere 
force  of  the  burning  to  the  adjoining  buildings  or  to  those 
so  near  to  that  first  fired  as  that  they  would  ordinarily  be 
-consumed,  and  the  floating  of  the  sparks  and  burning  coals 
through  the  air,  must,  if  new  causes,  be  regarded  as  merely 
incidental  to  the  first  or  efficient  cause.  They  spring  nat- 
urally and  inevitably  out  of  it,  and  cannot  be  regarded  as 
independent  of  it.  And,  so,  too,  in  a  country  where  winds 
generally  prevail,  and  this  motion  of  the  air  may  almost  be 
said  to  be  its  normal  condition,  so  that  sparks  and  coals 
of  fire  will  float  or  be  carried  to  a  greater  distance,  and 
where  seasons  of  dryness  are  frequent  and  ordinary,  ren- 
dering all  combustible  things  highly  susceptible  of  ignition 
from  contact  with  sparks  and  burning  coals,  must  these  not 
also,  if  regarded  as  causes,  be  considered  such  only  as  are 
incidental  to  the  main,  first  cause  ?  Do  they  not  come  in 
aid  of  it  merely,  rendering  it  the  efficient  agent  of  destruc- 
tion? Certainly  as  independent  causes  they  are  power- 
less, and  could  not  produce  the  mischief,  and  it  is  only 
as  incidental  to  the  first  cause  that  they  may  be  said  to  con- 
tribute in  producing  it.  They  are  natural  and  ordinary 
conditions  merely,  by  which  that  cause  is  made  effective, 
and  it  seems  hardly  proper  to  speak  of  or  regard  them  as 
causes  in  such  connection. 

And  again,  in  the  extract  above  made,  what  was  in- 
tended by  the  conclusion  that  it  would  be  illogical  to  hold 


173  Kellogg  v.  Chicago,  N.  W.  Ry.  Co, 

the  match  chargeable  as  the  cause  of  what  it  did  not  do, 
and  might  not  have  done,  if  not  to  hold  that  the  negligent 
party  is  responsible  for  the  first  house  burned,  and  not  for 
any  other,  regardless  of  all  other  considerations  ?  And  does 
not  the  conclusion  also  show  that  if  by  the  possible  co-oper- 
ation of  any  other  agency,  natural  or  artificial  (not  that 
some  new  and  independent  cause  must  be  found),  the  sec- 
ond house  is  destroyed,  the  wrong-doer  is  not  chargeable/ 
merely  because  such  destruction  is  a  second  or  succeeding 
event,  and  for  no  other  reason  ?  We  must  confess  our  in- 
ability to  put  any  other  construction  upon  the  language. 

And  furthermore,  we  can  conceive  of  no  more  unmis- 
takable evidence  of  the  doctrine  held  by  the  court,  and 
upon  which  the  decision  proceeded,  than  is  found  in  that 
part  of  the  opinion  quoted  by  counsel  in  their  argument, 
and  which  is  as  follows:  "It  cannot  be  denied  but  the 
plaintiff's  property  was  destroyed,  but  by  a  secondary 
cause,  namely,  the  burning  of  the  warehouse.  The  sparks 
from  the  locomotive  did  not  ignite  the  hotel.  They  fired 
the  warehouse,  and  the  warehouse  fired  the  hotel.  They 
were  the  remote  cause — the  cause  of  the  cause  of  the  hotel 
being  burned.  As  there  was  an  intermediate  agent  or  cause 
of  destruction,  between  the  sparks  and  the  destruction  of 
the  hotel,  it  is  obvious  that  that  was  the  proximate  cause 
of  its  destruction,  and  the  negligent  emission  of  sparks  the 
remote  cause.  To  hold  that  the  act  of  negligence  which 
destroyed  the  warehouse,  destroyed  the  hotel,  is  to  disre- 
gard the  order  of  sequences  entirely,  and  would  hold  good 
if  a  row  of  buildings  a  mile  long  had  been  destroyed.  The 
cause  of  the  destruction  of  the  last,  in  that  case,  would  be 
no  more  remote,  within  the  meaning  of  the  maxim,  than 
that  of  the  first;  and  yet,  how  many  concurring  elements 
of  destruction  there  might  be  in  all  of  these  houses,  and 


Opinions  of  Chief  Justice  Dixon.  174 

no  doubt  would  be,  no  one  can  tell.  So  to  hold  would  con- 
found all  legitimate  ideas  of  cause  and  effect,  and  really 
expunge  from  the  law  the  maxim  quoted,  that  teaches  ac- 
countability for  the  natural  and  necessary  consequences  of 
a  wrongful  act,  and  which  should,  in  reason,  be  only  such 
that  the  wrong-doer  may  be  presumed  to  have  known 
would  flow  from  his  act."  Comment  upon  this  language 
seems  scarcely  admissible  for  the  purpose  of  making  the 
meaning  and  intention  of  the  court  more  clear,  that  it  is 
"the  order  of  sequences,"  or,"  as  previously  stated  in  the 
opinion,  "the  succession  of  events,"  which  determines  the 
application  of  the  maxim.  The  sparks  from  the  locomo- 
tive fired  the  warehouse,  and  the  burning  of  the  warehouse 
fired  the  hotel;  and  therefore  the  firing  of  the  warehouse 
was  not  the  cause  of  the  firing  of  the  hotel.  This  is  the 
logic.  It  was  the  burning  of  the  warehouse,  and  not  the 
wrongful  setting  fire  to  it,  which  caused  the  destruction 
of  the  hotel,  no  matter  how  naturally,  necessarily  or  in- 
evitably even,  under  any  circumstances,  the  destruction  of 
the  latter  may  have  followed  from  the  wrongful  act  of  fir- 
ing the  former.  It  is  the  order  of  sequences  or  succession 
of  events  which  controls.  The  burning  of  each  building, 
structure  or  thing  having  a  separate  existence,  use,  name 
or  ownership,  is  an  event  by  itself,  and  each  event  a  cause 
by  itself,  which  cause  alone  is  to  be  considered  as  produc- 
ing the  next  event  or  cause  in  the  series,  or  as  the  proxi- 
mate cause  of  it,  regardless  of  the  relation  of  one  event  to 
another,  or  of  the  necessary,  natural  or  inevitable  depend- 
ence of  any  or  all  of  them  upon  the  first  cause  or  wrongful 
act  of  the  party  to  be  charged.  Courts  and  juries  are  pre- 
cluded by  the  maxim,  and  must  shut  their  eyes  to  the  nat- 
ural and  ordinary  relation  of  things,  or  of  cause  to  effect, 
and  looking  only  to  spark  or  match  must  follow  that,  and, 


175  Kellogg  v.  Chicago,  N.  W.  Ry.  Co. 

seeing  what  building  or  substance  that  ignited,  must  deter- 
mine that  the  destruction  of  such  building  or  substance 
alone  was  the  result  of  the  wrongful  act.  If  there  be  other 
buildings  or  substances  immediately  connected  with  that 
to  which  the  spark  or  match  is  applied,  or  so  situated  as 
that  they  must  necessarily  be  and  are  consumed  by  the  fire, 
they  become  and  are  intermediate  agents  or  causes  of  their 
own  destruction,  and  destroy  themselves  or  each  other.  The 
building  first  fired  is  such  an  agent  or  cause  with  respect 
to  that  to  which  the  fire  is  directly  communicated  from  it. 
The  warehouse  was,  in  the  language  of  the  court,  such  "an 
intermediate  agent  or  cause  of  destruction"  with  respect 
to  the  hotel.  It  was  the  warehouse  that  destroyed  the  hotel, 
and  not  the  act  of  setting  fire  to  the  warehouse.  It  is  true, 
that  towards  the  close  of  the  extract  the  court  speak  of  ac- 
countability for  the  "natural  and  necessary  consequences 
of  a  wrongful  act ;"  but  it  is  obvious  they  exclude  and  pre- 
vent such  accountability  by  the  interpretation  given  the 
maxim,  and  the  definition  of  proximate  and  remote  in  the 
relation  of  causes  to  the  effects  produced — by  arbitrarily 
establishing  the  rule,  and  holding  that  the  burning  of  the 
first  building  is  the  only  natural  and  necessary  consequence 
of  the  wrongful  act. 

And  if  we  turn  to  the  case  of  Ryan,  we  shall  find  no 
material  difference  in  the  facts,  nor  in  the  reasoning  or 
conclusion  of  the  court.  There  is  no  allusion  in  it  to  any 
extraordinary  circumstances  existing  at  the  time,  contrib- 
uting to  the  destruction  of  the  plaintiff's  house.  It  is  not 
stated  that  the  wind  was  blowing  with  unusual  violence, 
nor  that  it  was  blowing  at  all,  in  the  direction  of  the  house, 
nor  that  the  weather  was  dry.  In  the  absence  of  any  state- 
ment of  either,  as  a  circumstance  affecting  the  case  or  in- 
fluencing the  judgment,  it  is  fair  to  presume  that  neither 


Opinions  of  Chief  Justice  Dixon.  176 

existed.  It  is  fair  to  presume,  therefore,  and  must  be  pre- 
sumed, that  the  burning  of  the  house  was  the  natural  and 
probable  consequence  of  the  setting  fire  to  and  burning  of 
the  woodshed  with  the  wood  therein,  under  ordinary  cir- 
cumstances, or  circumstances  the  most  favorable  to  the  de- 
fendant, such  as  a  still  day  and  no  dryness  of  the  shingles 
or  materials  of  which  the  house  was  composed,  so  as  to  in- 
crease the  danger.  It  is  true,  it  is  stated  that  the  house 
was  one  hundred  and  thirty  feet  from  the  shed,  but  it  is 
also  stated  that  there  was  a  large  quantity  of  wood  in  the 
shed,  and  that  the  house  soon  took  fire  from  the  heat  and 
sparks,  and  was  entirely  consumed,  notwithstanding  dili- 
gent efforts  were  made  to  save  it;  from  which  we  infer  that 
the  destruction  of  the  house  1-y  fire  was  naturally  and  nec- 
essarily involved  in  the  burning  of  the  shed  with  the  large 
quantity  of  wood  therein,  under  any  circumstances.  The 
opinion  states  the  facts  as  follows:  "On  the  15th  day  of 
July,  1854,  in  the  city  of  Syracuse,  the  defendant,  by  the 
careless  management,  or  through  the  insufficient  condition, 
of  one  of  its  engines,  set  fire  to  its  woodshed  and  a  large 
quantity  of  wood  therein.  The  plaintiff's  house,  situated 
at  a  distance  of  one  hundred  and  thirty  feet  from  the  shed, 
soon  took  fire  from  the  heat  and  sparks,  and  was  entirely 
consumed,  notwithstanding  diligent  efforts  were  made  to 
save  it.  A  number  of  other  houses  were  also  burned  by  the 
spreading  of  the  fire.  The  plaintiff  brings  this  action  to 
recover  from  the  railroad  company  the  value  of  his  build- 
ing thus  destroyed."  Forgetting  the  statute  6  Ann.  c.  31, 
sec.  6,  and  its  effect  upon  the  proposition  as  hereafter  no- 
ticed, the  court  then  immediately  proceed  to  state  the  ques- 
tion to  be  considered,  as  follows :  "A  house  in  a  populous 
city  takes  fire,  through  the  negligence  of  the  owner  or  his 
servant;  the  flames  extend  to  and  destroy  an  adjacent 


177  Kellogg  v.  Chicago,  N.  W.  Ry.  Co. 

building.  Is  the  owner  of  the  first  building  liable  to  the 
second  owner  for  the  damage  sustained  by  such  burning  ?" 
It  appears  from  this  that  the  question  to  be  decided  was, 
as  where  the  flames  from  the  burning  building,  wrongfully 
fired,  actually  reach  and  necessarily  and  unavoidably  con- 
sume another  or  an  adjoining  building,  or  where  such  other 
building  is  consumed  by  the  mere  force  of  the  first  con- 
flagration. ]^"ext  the  court  say:  "It  is  a  general  principle 
that  every  person  is  liable  for  the  consequences  of  his  own 
acts.  He  is  thus  liable  to  damages  for  the  proximate  re- 
sults of  his  own  acts,  but  not  for  remote  damages.  It  is 
not  easy  at  all  times  to  determine  what  are  proximate  and 
what  are  remote.  In  Thomas  v.  Winchester,  2  Seld.  48, 
Judge  Ruggles  defines  the  damages  for  which  a  party  is 
liable,  as  those  which  are  the  natural  and  necessary  conse- 
quences of  his  acts."  Here  follows  an  examination  of 
some  of  the  adjudged  cases,  and  then  these  questions  are 
put:  "If,  however,  the  fire  communicates  from  the  house 
of  A.  to  that  of  B.,  and  that  is  destroyed,  is  the  negligent 
party  liable  for  the  loss  ?  And  if  it  spreads  thence  to  the 
house  of  C.,  and  thence  to  the  house  of  D.,  and  thence  con- 
secutively through  the  other  houses,  until  it  reaches  and 
consumes  the  house  of  Z.,  is  the  party  liable  to  pay  the  dam- 
ages sustained  by  these  twenty-four  sufferers  ?"  After  this 
the  opinion  alludes  to  the  possible  difference  between  an 
intentional  and  a  negligent  firing,  and  to  an  English  de- 
cision which  is  directly  opposed  to  the  conclusion  arrived 
at  by  the  court,  and  proceeds  thus:  "Without  deciding 
upon  the  importance  of  this  distinction,  I  prefer  to  place 
my  opinion  upon  the  ground  that,  in  the  one  case,  to  wit, 
the  destruction  of  buildings  upon  which  the  sparks  were 
thrown  by  the  negligent  act  of  the  party  sought  to  be 
charged,  the  result  was  to  have  been  anticipated  the  mo- 
12 


Opinions  of  Chief  Justice  Dixon.  178 

ment  the  fire  was  communicated  to  the  building — that  its 
destruction  was  the  ordinary  and  natural  result  of  its  being 
fired.  In  the  second,  third,  or  twenty-fourth  case  as  sup- 
posed, the  destruction  of  the  building  was  not  a  natural 
and  expected  result  of  the  first  firing.  That  a  building 
upon  which  sparks  and  cinders  fall  should  be  destroyed  or 
seriously  injured  must  be  expected,  but  that  the  fire  should 
spread,  and  other  buildings  be  consumed,  is  not  a  neces- 
sary or  a  usual  result.  That  it  is  possible,  and  that  it  is 
not  unfrequent,  cannot  be  denied.  The  result,  however, 
depends,  not  upon  any  necessity  of  a  further  communica- 
tion of  the  fire,  but  upon  a1  concurrence  of  accidental  cir- 
cumstances, such  as  the  degree  of  heat,  the  state  of  the  at- 
mosphere, the  condition  and  materials  of  the  adjoining 
structures,  and  the  direction  of  the  wind.  These  are  acci- 
dental and  varying  circumstances.  The  party  has  no  con- 
trol over  them,  and  is  not  responsible  for  their  effects.  My 
own  opinion,  therefore,  is,  that  this  action  cannot  be  sus- 
tained, for  the  reason  that  the  damages  incurred  are  not 
the  immediate  but  the  remote  result  of  the  negligence  of 
the  defendants.  The  immediate  result  was  the  destruc- 
tion of  their  own  wood  and  sheds;  beyond  that  it  was  re- 
mote" 

We  have  thus  given  the  facts,  and  all  the  reasoning  of 
the  court  in  support  of  the  rule  of  law  or  principle  at- 
tempted to  be  maintained  by  the  decision.  The  residue  of 
the  opinion  discusses  some  other  cases  upon  the  subject  of 
negligence,  including  the  leading  one  of  Scott  v.  Shepherd, 
and  calls  attention  to  the  disastrous  consequences  which 
must  ensue  to  all  wrong-doers  and  parties  destroying  the 
property  of  others  by  negligence,  if  any  other  rule  than 
that  adopted  by  the  court  were  to  be  established.  The 
foundation  upon  which  the  argument  or  conclusion  rests, 


179  Kellogg  v.  Chicago,  N.  W.  Ry.  Co. 

is  the  assertion,  broadly  made,  that  the  burning  of  the  sec- 
ond building,  though  the  frequent,  is  not  the  natural  and 
expected  result  of  the  firing  of  the  first,  and  the  fact  that 
the  party  wrongfully  setting  the  fire  cannot  control  the  de- 
gree of  the  heat,  the  state  of  the  atmosphere,  the  condition 
and  materials  of  the  adjoining  structures,  and  the  direc- 
tion of  the  wind.  The  heat  generated  by  the  fire  which  he 
has  wrongfully  kindled,  is  not  within  his  control,  and, 
therefore,  he  is  not  responsible  for  its  effects.  The  fire 
once  lighted  and  the  heat  in  process  of  generation,  he  can- 
not stay  such  process  or  prevent  the  effects  of  the  heat  by 
any  means  or  instrumentality  within  his  power.  He  did 
not  dictate  the  condition  of  the  second  building,  nor  the 
materials  of  which  it  should  be  constructed ;  and  if  the  lat- 
ter are  combustible,  and  the  former  such  that  the  building 
must  take  fire  and  be  consumed,  it  is  the  unfortunate  own- 
er's fault,  not  his.  Neither  does  he  dictate  the  state  of  the 
atmosphere,  nor  the  direction  of  the  wind.  These  are  the 
subjects  of  a  higher  power.  He  cannot  rebuke  the  winds, 
or  bid  them  cease  or  change  their  course,  and  if  they  carry 
the  fire  and  waft  destruction  on  their  wings,  it  is  not  his 
fault.  He  may  disregard  all  these  circumstances,  and 
wrongfully  set  the  fire  despite  them  if  he  will,  knowing 
their  existence  and  the  results  which  they  will  surely  pro- 
duce, and  yet  shall  be  regarded  faultless  and  innocent  with 
respect  to  those  results. 

And  as  to  the  unqualified  assertion  that  the  burning  of 
the  second  house  is  not  the  natural  and  expected  result  of 
the  firing  of  the  first,  it  seems  to  rest  upon  much  the  same 
basis  of  reason  and  regard  for  natural  and  physical  truth, 
or  for  the  relation  of  causes  to  their  effects,  as  we  find  them 
constantly  exhibiting  themselves  under  the  unvarying  oper- 
ation of  universal  natural  laws.  In  the  case  supposed, 


Opinions  of  Chief  Justice  Dixon.  180 

though  the  flames  of  the  burning  of  the  first  house  "ex- 
tend to  and  destroy"  the  second  by  their  own  mere  force, 
yet  it  is  declared  the  destruction  of  the  second  is  "not  a 
natural  and  expected  result  of  the  first  firing." 

We  have  been  led  to  this  careful  examination  of  the 
foregoing  cases  by  the  criticism  of  counsel,  that  our  re- 
mark in  the  former  opinion,  that  "the  point  of  the  decis- 
ions was  that  the  burnings  were  distinct  and  separate,  a 
series  of  events  succeeding  one  another,"  and  therefore, 
the  defendants  were  not  liable,  was  unjust  and  unfounded. 
We  must  now  leave  it  with  the  reader  to  say  whether  it  was 
so  or  not.  The  learned  counsel  having,  as  we  are  con- 
strained to  think  and  to  say,  learned  their  law  in  a  wiser 
and  better  school,  felt  called  upon  to  rescue  those  courts 
from  the  imputation  of  having  so  decided,  and  thus  we 
were  to  be  visited  with  the  consequences  of  having  mistaken 
or  misunderstood  their  decisions,  although  we  quoted  their 
own  words.  As  already  observed,  we  deemed  it  sufficient 
at  that  time  to  distinguish  those  cases  from  the  present 
upon  the  ground  on  which  they  obviously  proceeded,  and, 
although  our  views  were  then  the  same  as  now  with  regard 
to  the  correctness  of  the  decisions,  we  thought  it  unneces- 
sary to  express  them.  Now,  however,  we  have  felt  com- 
pelled to,  and  have  freely  done  so ;  for  it  will  appear  from 
what  has  been  said,  that  we  do  not  at  all  accede  to  their 
correctness,  notwithstanding  the  great  consideration  and 
respect  so  justly  due  to  the  judgments  of  the  learned  and 
able  tribunals  by  which  they  were  pronounced.  And  in 
these  views  we  are  happy  to  say,  although  he  differed  from 
Justice  Cole  and  myself  in  other  particulars,  that  our  late 
learned  and  lamented  associate,  Mr.  Justice  Paine,  now 
deceased,  fully  concurred.  It  will  be  observed  that  the 
cases  are  not  referred  to  or  relied  upon  in  his  opinion,  and 


181  Kellogg  v.  Chicago,  N.  W.  Ry.  Co. 

are  inconsistent  with  it;  and  we  know,  as  he  frequently 
said,  that  he  considered  them  illogical  and  unsound  in 
making  the  order  of  events  the  criterion  of  liability,  and 
in  considering  every  result  remote,  except  that  first  or  im- 
mediately produced  by  the  application  of  the  fire.  We 
accept  now,  therefore,  as  we  did  then,  and  regard  as  just 
and  well  founded,  the  remark  of  the  present  learned  chief 
justice  of  Massachusetts,  when  he  said  of  the  Kyan  case: 
"Xor  does  the  opinion  draw  any  line  of  distinction  between 
what  is  proximate  and  what  is  remote;  and  such  a  line  is 
not  obvious  in  that  case."  And  the  same  observation  is 
equally  and  more  just  and  true  of  the  opinion  in  the  case 
of  Kerr.  With  all  due  respect,  we  must  say  it  seems  to 
us  that  the  distinction,  as  well  settled  both  on  reason  and 
authority,  is  utterly  confounded  and  lost  sight  of  in  both. 
It  has  been  often  truly  said,  that  hard  cases  make  bad 
precedents;  and  we  cannot  but  think  that  the  supposed 
hardship  of  holding  the  negligent  party  responsible  for  all 
the  legitimate  consequences  of  his  act  must  have  had  its 
influence  upon  the  mind  of  the  court  in  each  case.  If  a 
servant,  driving  his  master's  carriage  in  the  street,  negli- 
gently runs  over  and  tramples  a  foot  passenger,  making 
him  a  cripple  for  life,  the  master  must  respond  for  the 
damages,  be  they  never  so  much.  If,  by  the  same  negligent 
act,  the  servant  runs  over,  tramples  and  cripples  two,  three, 
twelve  or  twenty-four,  must  the  master  not  in  like  manner 
respond  in  damages  for  the  injuries  sustained  by  each  one 
of  them?  Will  it  make  any  difference  that  the  servant 
crippled  A.  first,  then  B.,  then  C.,  and  so  on  down  to  Z., 
if  the  crippling,  of  all  was  the  natural  and  necessary  re- 
sult of  the  same  wrongful  act  ?  And  will  it  make  any  dif- 
ference also  in  such  case,  that  the  master  may  be  over- 
whelmed in  damages  or  involved  in  pecuniary  ruin  ?  It  is 


Opinions  of  Chief  Justice  Dixon.  182 

quite  immaterial  to  the  last  or  any  intermediate  sufferer, 
whether  he  be  the  last,  first  or  any  other  in  the  order  to 
receive  injury ;  and  it  would  seem  a  most  inexplicable  rule 
of  law  that  should  found  a  distinction  upon  this  circum- 
stance, and  hold,  because  he  was  the  last  or  any  one  after 
the  first,  he  could  not  recover.  Some  one  must  suffer  for 
injuries  thus  inflieted ;  and  as  between  the  master  and  in- 
nocent third  persons,  the  law  has  wisely  fixed  that,  so  far 
as  pecuniary  compensation  will  go,  it  shall  be  the  iriaster 
who  employs,  controls  and  directs  the  servant 

Speaking  of  the  liability  of  the  master  for  damage  done 
by  the  servant  while  actually  employed  in  the  master's 
service,  Blackstone  says :  "Upon  this  principle,  by  the  com- 
mon law,  if  a  servant  kept  his  master's  fire  negligently,  so 
that  his  neighbor's  house  was  burned  down  thereby,  an 
action  lay  against  the  master;  because  his  negligence  hap- 
pened in  his  service."  1  Bl.  Comm.  431.  But  this  rule 
was  changed  by  statute  6  Ann,  c.  31,  sec.  6,  still  in  force, 
which  ordains  that  no  action  shall  be  maintained  against 
any  in  whose  house  or  chamber  any  fire  shall  accidentally 
begin ;  for  their  own  loss  is  sufficient  punishment  for  their 
own  or  their  servant's  carelessness.  Ibid.  That  statute 
being  in  force  in  this  country  at  the  time  of  the  revolu- 
tion and  since  as  part  of  our  common  law,  sufficiently  ex- 
plains the  absence  of  precedents  for  the  recovery  of  dam- 
ages in  such  cases ;  but,  as  it  does  not  extend  to  any  others, 
they  are  still  governed  by  the  rule  of  the  common  law,  un- 
less expressly  excepted  by  subsequent  statutory  enactment. 
See  1  Cooley's  Bl.  Comm.  431,  note  (19)  ;  Bachelder  v. 
Heagan,  18  Me.  33 ;  Lansing  v.  Stone,  37  Barb.  15 ;  Co- 
burn  v.  Harvey,  18  Wis.  147. 

And  if,  in  a  case  like  that  above  supposed,  the  servant 
negligently  drives  against  and  throws  down  one,  and  he 


183  Kellogg  v.  Chicago,  N.  W.  Rp  Co. 

in  falling  strikes  against  and  throws  down  another,  and 
that  one  a  third,  and  so  on,  until  twenty-four  are  pros- 
trated, trampled  and  injured,  is  the  case  any  different, 
although  all  after  the  first  might  have  escaped,  but  for  the 
impulse  wrongfully  given  to  the  first,  which  communicated 
itself  through  him  to  the  second,  and  through  the  second  to 
the  third,  and  thus  on  to  the  last  ?  The  horses  and  carriage 
wrongfully  driven  against  and  prostrating  the  first,  and 
passing  thence  on  over,  trampling  and  bruising  all  to  the 
last,  are  the  same  means  or  instrument  of  injury  first  neg- 
ligently set  in  motion.  And  so  the  fire  first  wrongfully 
applied  to  the  house  of  A.  is  the  same  devouring  element 
until  it  reaches  and  consumes  the  house  of  Z.  Though  fed 
on  different  substances,  it  is  throughout  its  march  of  de- 
struction the  same  means  or  instrument  of  injury  first 
wrongfully  set  in  motion.  It  may,  with  strict  propriety 
of  speech  and  of  reason  too,  be  said,  that  the  fire  which 
consumes  the  last  house  is  the  very  same  which  was  unlaw- 
fully applied  to  the  first;  and  that  it  was  applied  to  the 
last  by  the  same  unlawful  act. 

And  if  we  consult  the  analogies  of  the  criminal  law, 
where  it  is  obvious  that  the  rule  of  the  civil  law  should  pro- 
ceed as  far  and  even  go  beyond  it,  we  shall  find  the  same 
principle  prevails :  "If  A.  have  a  malicious  intent  to  burn 
the  house  of  B.,  and  in  setting  fire  to  it  burn  the  house  of 
C.  also,  or  if  the  house  of  B.  escapes  by  some  acicdent, 
and  the  fire  take  in  the  house  of  C.  and  burn  it,  this 
shall  be  said  in  law  to  be  malicious  and  wilful  burn- 
ing of  the  house  of  C.,  though  A.  did  not  intend  to  burn 
that  house.  And  accordingly  it  has  been  said,  that  if  one 
man  command  another  to  burn  the  house  of  J.  S.,  and  he 
do  so,  and  the  fire  thereof  burn  another  house,  the  com- 


Opinions  of  Chief  Justice  Dixon.  184 

mander  is  accessory  to  the  burning  of  such  other  house. 
So  it  has  been  held  that  if  a  person  set  fire  to  a  stack,  the 
fire  from  which  is  LIKELY  to  communicate  to  a  barn, 
and  it  does  so,  he  is,  in  point  of  law,  indictable  for  setting 
fire  to  the  barn."  2  Russell  on  crimes,  549.  By  parity 
of  reasoning,  if  one  negligently  set  fire  to  the  house  of  A., 
or  to  his  own  house,  the  fire  from  which  is  likely  to  com- 
municate to  the  house  of  B.,  and  it  does  so,  he  should,  in 
point  of  law,  be  liable  for  setting  fire  to  the  last  house. 

We  remark,  in  passing,  what  has  very  recently  fallen 
under  our  observation,  that  the  supreme  court  of  New  York 
for  the  fourth  judicial  district,  at  general  term,  January, 
1871,  Judge  Johnson  delivering  the  opinion,  in  Webb 
v.  The  Rome,  Watertown  and  Ogdensburgh  Railroad  Co., 
3  Lansing,  453,  took  the  same  view  of  the  case  of  Field  v. 
New  York  Central  Railroad  (32  N.  Y.  339),  which  was 
taken  by  ourselves  in  the  former  opinion,  and  in  the  case 
before  them,  which  was  like  it  and  like  the  present,  fol- 
lowed that  decision.  The  court  observe  that  the  case  was 
cited  in  the  opinion  in  the  Ryan  case  and  not  overruled, 
and  think  the  question  should  again  be  presented  to  the 
court  of  appeals.  They  also  observe :  "It  is  difficult  to  see, 
it  must  be  admitted,  how  both  decisions  can  stand,  or  if 
a  distinction  can  be  found,  on  what  substantial  ground  of 
principle  it  can  be  placed."  We  concur  in  this  observa- 
tion, and  also  the  following:  "The  question  is  also  one  of 
vast  importance  at  this  time,  when  an  element  so  dangerous 
if  carefully  handled  and  used,  is  carried  with  such  fre- 
quency and  speed  through  the  length  and  breadth  of  the 
land  by  a  power  itself  generates  in  its  passage,  and  under 
no  control,  except  that  of  the  parties  for  whose  immediate 
benefit  it  is  thus  carried  and  used,  or  their  servants.  The 


Kellogg  v.  Chicago,  N.  W.  Ry.  Co. 

principle  is  equally  important  to  those  who  so  use  the  ele- 
ment as  a  motive  power,  and  to  those  who  axe  liable  to  be 
injured  by  its  escape  along  the  path  of  its  transit" 

We  also  remark  that  it  is  said  in  the  opinion  in  the  case 
of  Kerr,  that  in  Smith  v.  The  London  and  Southwestern 
Railway  Co.,  L.  R.  5  C.  P.  98,  the  question  whether  the 
damages  there  recovered  were  proximate  or  remote,  or 
whether  the  defendant  was  guilty  of  negligence  with  re- 
spect to  the  property  of  the  plaintiff  which  was  destroyed, 
was  passed  over  sub  silentio.  We  cannot  so  regard  the 
case.  On  the  contrary,  we  think  that  was  the  very  point 
under  discussion,  and  upon  which  the  court  divided.  The 
facts  of  the  case  were,  that  workmen,  employed  by  the  com- 
pany in  cutting  the  grass  and  trimming  the  hedges  border- 
ing on  the  railway,  placed  the  trimmings  in  heaps  near  the 
line,  and  allowed  them  to  remain  there  fourteen  days,  dur- 
ing very  hot  weather  in  the  month  of  August  Fire  from 
a  passing  engine  ignited  one  of  these  heaps  and  burned  the 
hedge,  and  was  thence  carried  by  a  high  wind  across  a 
stubble-field  and  a  public  road,  and  burned  the  goods  of  the 
plaintiff  in  a  cottage  about  200  yards  distant  from  the 
railway.  It  was  held  by  Bovill,  C.  J.,  and  Keating, 
J.  (Brett,  J.,  dissenting),  that  there  was  evidence  to  go 
to  the  jury  of  negligence  on  the  part  of  the  railway  com- 
pany, although  there  was  no  suggestion  that  the  engine 
was  improperly  constructed  or  driven-.  Brett,  J.,  states 
the  point  of  his  dissent  as  follows:  "But  I  am  of  opinion 
that  no  reasonable  man  could  have  foreseen  that  the  fire 
would  consume  the  hedge  and  pass  across  a  stubble-field, 
and  so  get  to  plaintiff's  cottage  at  the  distance  of  200  yards 
from  the  railway,  crossing  a  road  in  its  passage.  It  seems 
to  me  that  no  duty  was  cast  upon  the  defendants,  in  rela- 
tion to  the  plaintiff's  property,  because  it  was  not  shown 


Opinions  of  Chief  Justice  Dixon.  186 

that  that  property  was  of  such  a  nature  and  so  situate  that 
the  defendants  ought  to  have  known  that  by  permitting  the 
rummage  and  hedge  trimmings  to  remain  on  the  banks  of 
the  railway,  they  placed  it  under  undue  peril. — We  "read 
of  such  fires  in  the  American  prairies ;  but  it  would  never 
occur,  as  it  seems  to  me,  to  the  mind  of  the  most  prudent 
person,  that  such  an  extraordinary  conflagration  could  be 
caused  in  this  country  in  the  manner  here  spoken  to  by 
the  witnesses."  And  Keating,  J.,  after  recounting  the 
facts,  said:  "I  therefore  think  it  may  be  fairly  inferred 
that  the  fire  broke  out  under  circumstances  which  showed 
that  the  materials  it  fell  upon  were  in  a  highly  combustible 
state.  The  fire  extended  up  the  bank  to  the  railway, 
through  the  hedge,  and  across  a  stubble-field,  and  so  to  the 
plaintiff's  cottage.  Undoubtedly  at  that  time  there  seems 
to  have  been  a  very  high  wind ;  and  that  would  give  a  force 
to  the  fire  which  under  ordinary  circumstances  it  would 
not  have  had.  But  that  which  presses  upon  my  mind  is, 
that  it  is  impossible  to  say,  that  the  accumulation  of  such 
materials  at  such  a  season  of  the  year,  and  permitting  them 
to  remain  there  so  long,  was  not  some  evidence  of  negli- 
gence. It  was  proved  that  the  weather  was  unusually  dry, 
and  that  fires  were  occurring  all  about  the  country,  though 
it  was  not  expressly  stated  that  these  were  on  the  line.  Un- 
der these  circumstances,  I  cannot  help  thinking  that  the 
allowing  the  accumulation  of  such  materials  so  near  to 
where  trains  were  constantly  passing,  was  evidence  of  negli- 
gence." And  Bovill,  C.  J.,  said:  "We  must  therefore 
look  at  all  the  circumstances  occurring  at  the  time  of  the 
accident,  to  see  if  there  was  anything  upon  which  to  found 
the  charge  of  negligence.  At  the  time  this  fire  occurred,, 
the  weather  was  and  had  been  for  a  considerable  period 
unusually  dry.  The  company's  servants  had  been  em- 


187  Kellogg  v.  Chicago,  N.  W.  Ry.  Co. 

ployed  in  cutting  the  grass  and  trimming  the  hedges  at  the 
sides  of  the  line,  and  had  heaped  together  the  cuttings 
either  for  the  purpose  of  burning  or  carrying  them  away, 
and  had  allowed  them  to  remain  in  that  state  for  about  a 
fortnight.  Under  ordinary  circumstances,  it  may  be  that 
hedges  are  not  expected  to  ignite;  but,  if  there  be  collec- 
tions of  grass  and  hedge  trimmings  near  them  in  a  very 
dry  and  inflammable  condition,  and  these  by  some  means 
become  ignited,  it  may  fairly  be  presumed  that  the  hedges 
will  be  in  danger ;  and  who  is  to  say  where  the  danger  will 
stop  ?  It  is  said  that  no  reasonable  man  could  have  sup- 
posed that,  even  if  the  fire  did  communicate  to  the  hedge, 
it  would  run  across  a  stubble-field  and  a  public  road,  and 
so  reach  a  building  at  the  distance  of  200  yards  from  the 
railway.  But  seeing  that  the  defendants  were  using  dan- 
gerous machines ;  that  they  allowed  the  cuttings  and  trim- 
mings to  remain  on  the  banks  of  their  railway,  in  a  season 
of  unusual  heat  and  dryness,  and  for  a  time  which,  under 
these  circumstances,  may  fairly  be  called  unreasonable, 
and  that  there  was  evidence  from  which  it  might  reasonably 
be  presumed  that  their  engines  caused  the  ignition  of  these 
combustible  materials,  and  that  the  fire  did  in  fact  extend 
to  the  cottage,  I  think  it  impossible  to  say  that  there  was 
not  evidence  from  which  a  jury  might  be  justified  in  con- 
cluding there  was  negligence  as  regards  the  plaintiff,  and 
that  the  destruction  of  the  cottage  in  which  the  plaintiff's 
goods  were  was  the  natural  consequence  of  their  negligence. 
What  the  defendant's  servants  ought,  as  reasonable  men, 
to  have  contemplated  as  the  result  of  leaving  the  accumu- 
lations of  cuttings  and  trimmings  where  and  as  they  did, 
must  depend  upon  all  the  circumstances." 

Rejecting,  as  we  are  compelled  to,  therefore,  the  author- 
ity of  the  New  York  and  Pennsylvania  decisions,  we  ac- 


Opinions  of  Chief  Justice  Dixon.  188 

cept  that  of  the  remaining  cases  cited  by  counsel,  and  also 
the  authority  of  the  learned  counsel  themselves.  We  en- 
tirely agree  with  the  learned  counsel  when  they  say,  speak- 
ing of  the  New  York  and  Pennsylvania  decisions  as  inter- 
preted by  ourselves :  "With  all  due  respect,  we  submit  that 
this  is  not  the  true  rule  for  determining  as  to  the  applica- 
tion of  the  maxim.  *  *  *  * 

That  it  is  not  the  true  rule  is  demonstrated  by  the  indis- 
putable fact  that  compensation  may  be  recovered  for  any 
number  of  injurious  results,  consecutively  produced  by 
impulsion,  one  upon  another,  and  constituting  distinct  and 
separate  events;  provided  they  all  necessarily  follow  the 
negligence  or  wrongful  act  constituting  the  first  cause. 
*  *  *  This  is  the  distinguishing  feature,  upon  which 
the  damages  have  been  held  sufficiently  proximate  in  many 
cases  where,  at  first  glance,  they  appear  quite  remote." 
This  we  regard  as  an  undoubtedly  correct  statement  of  the 
law,  and  one  which  is  upheld  by  all  the  authorities  save  the 
two  cases  last  referred  to,  which,  as  it  seems  to  us,  are  in 
direct  opposition  to  all  others.  This  statement  was  ma'de 
on  the  authority  of  the  two  cases  of  McDonald  v.  Snelling, 
14  Allen,  290,  and  Barron  v.  Eldredge,  100  Mass.  455, 
cited  by  counsel.  The  law  upon  the  subject  is  laid  down 
with  great  accuracy  and  precision  in  the  former  and  numer- 
ous cases  referred  to.  The  court  say:  "Where  a  duty  or 
right  is  created  wholly  by  contract,  it  can  only  be  enforced 
between  the  contracting  parties.  But  where  the  defendant 
has  violated  a  duty  imposed  upon  him  by  the  common  law, 
it  seems  just  and  reasonable  that  he  should  be  held  liable 
to  every  person  injured,  whose  injury  is  the  natural  and 
probable  consequence  of  the  misconduct.  In  our  opinion, 
this  is  the  well  established  and  ancient  doctrine  of  the  com- 
mon law,  and  such  a  liability  extends  to  consequential  in- 


189  Kellogg  v.  Chicago,  N.  W.  Ry.  Co. 

juries,  by  whomsoever  sustained,  so  long  as  they  are  of  a 
character  likely  to  follow,  and  which  might  reasonably 
have  been  anticipated  as  the  natural  and  probable  result 
under  ordinary  circumstances  of  the  wrongful  act.  The 
damage  is  too  remote  if,  according  to  the  usual  experience 
of  mankind,  the  result  was  not  to  be  expected.  This 
is  not  an  impracticable  or  unlimited  sphere  of  accountabil- 
ity, extending  indefinitely  to  all  possible  contingent  conse- 
quences. An  action  can  be  maintained  only  where  there 
is  shown  to  be,  first,  a  misfeasance  or  negligence  in  some 
particular  as  to  which  there  was  a  duty  towards  the  party 
injured,  or  the  community  generally ;  and,  secondly,  where 
it  is  apparent  that  the  harm  to  the  person  or  property  of 
another,  which  has  actually  ensued,  was  reasonably  likely 
to  ensue  from  the  act  or  omission  complained  of."  And 
again:  "It  is  clear  from  numerous  authorities,  that  the 
mere  circumstance  that  there  have  intervened,  between  the 
wrongful  cause  and  the  injurious  consequence,  acts  pro- 
duced by  the  volition  of  animals  or  of  human  beings,  does 
not  necessarily  make  the  result  so  remote  that  no  action  can 
be  maintained.  The  test  is  to  be  found,  not  in  the  number 
of  intervening  events  or  agents,  but  in  their  character,  and 
in  the  natural  and  probable  connection  between  the  wrong 
done  and  the  injurious  consequence.  So  long  as  it  affirma- 
tively appears  that  the  mischief  is  attributable  to  the  negli- 
gence as  a  result  which  might  reasonably  have  been  seen 
as  probable,  the  liability  continues." 

The  facts  in  that  case  were,  that  by  the  careless  driving 
of  his  servant,  the  defendant's  sled  was  caused  to  strike 
against  the  sleigh  of  one  Baker,  with  such  violence  as  to 
break  it  in  pieces,  throwing  Baker  out,  frightening  his 
horse,  and  causing  the  animal  to  escape  from  the  control 
of  its  driver,  and  to  run  violently  along  Tremont  street,. 


Opinions  of  Chief  Justice  Dixon.  190 

round  a  corner,  near  by,  into  Eliot  street,  where  he  ran 
over  the  plaintiff  and  his  sleigh,  breaking  that  in  pieces 
and  dashing  him  to  the  ground.  The  court  say:  "Upon 
this  statement,  indisputably  the  defendant  would  be  liable 
for  the  injuries  received  by  Baker  and  his  horse  and  sleigh. 
Why  is  he  not  responsible  for  the  mischief  done  by 
Baker's  horse  in  his  flight  ?  If  he  had  struck  that  animal 
with  a  whip,  and  so  made  it  run  away,  would  he  not  be 
liable  for  an  injury  like  the  present?  By  the  fault  and 
direct  agency  of  his  servant,  the  defendant  started  the 
horse  in  uncontrollable  flight  through  the  streets.  As  a 
natural  consequence,  it  was  obviously  probable  that  the 
animal  might  run  over  and  injure  persons  traveling  in  the 
vicinity.  Every  one  can  plainly  see  that  the  accident  to 
the  plaintiff  was  one  very  likely  to  ensue  from  the  careless 
act.  We  are  not,  therefore,  dealing  with  remote  or  unex- 
pected consequences,  not  easily  foreseen  nor  ordinarily 
likely  to  occur,  and  the  plaintiff's  case  falls  clearly  within 
the  rule  already  stated  as  to  the  liability  of  one  guilty  of 
negligence  for  the  consequential  damages  resulting  there- 
from." 

And  the  court  proceed  to  say,  that  the  views  thus  ex- 
pressed axe  fortified  by  numerous  decisions,  to  a  few  of 
which  it  may  be  expedient  to  refer.  And  they  refer  to 
the  case  of  Barnes  v.  Chapin,  4  Allen,  444,  where  it  was 
held  that  when  a  horse  was  turned  loose  on  the  highway, 
and  there  kicked  a  colt  running  by  the  side  of  its  dam,  the 
owner  of  the  horse  was  liable  for  that  damage.  And  also 
to  Powell  v.  Deveney,  3  Gush.  300,  where  defendant's  serv- 
ant left  a  truck  standing  beside  a  sidewalk  in  a  public 
street,  with  the  shafts  shored  up  by  a  plank  in  the  usual 
way.  Another  truckman  temporarily  left  his  loaded  truck 
directly  opposite  on  the  other  side  of  the  street,  after  which 


191  Kellogg  v.  Chicago,  N.  W.  Ry.  Co. 

a  third  truckman  tried  to  drive  his  truck  between  the 
two  others.  In  attempting  to  do  so  with  due  care,  he  hit 
the  defendant's  truck  in  such  a  manner  as  to  whirl  its 
shafts  around  on  the  sidewalk  so  that  they  struck  the 
plaintiff,  who  was  walking  by,  and  broke  her  leg.  For  this 
injury  she  was  allowed  to  maintain  her  action,  the  only 
fault  imputable  to  the  defendant  being  the  careless  position 
in  which  the  truck  was  left  by  his  servant  on  the  street, 
which  was  treated  as  the  sole  cause  of  the  breaking  of  the 
plaintiff's  leg,  and  in  legal  contemplation  sufficiently  prox- 
imate to  render  the  defendant  responsible.  These  are  fol- 
lowed by  several  other  citations. 

Now  it  seems  needless,  after  what  has  been  said,  to  point 
out  the  inconsistency  between  the  two  decisions  of  which 
we  have  been  speaking  and  the  principles  thus  laid  down, 
and  the  cases  in  which  they  have  been  applied,  which  are 
to  be  found  in  all  the  books.  The  conflict  is  manifest; 
and  it  is  equally  manifest,  if  those  two  decisions  are  to  be 
regarded  as  correct  in  principle  and  good  law,  that  hun- 
dreds, and  it  might  perhaps  with  truth  be  affirmed,  thou- 
sands of  cases,  both  in  England  and  this  country,  are  un- 
sound and  must  be  overruled.  We  cannot  so  regard  them. 
We  cannot  agree  with  the  court  of  appeals  that  the  burning 
of  the  second  and  other  houses  in  the  case  supposed,  or  of 
the  plaintiff's  house  in  the  case  before  the  court,  was  not 
the  natural  and  probable  consequence,  or  the  consequence 
likely  to  follow  from  the  wrongful  act  complained  of,  under 
ordinary  circumstances.  It  will  be  observed  that  the  rule 
as  we  find  it  laid  down,  and  as  we  must  believe  it  to  be,  is 
not  that  the  injury  sustained  must  be  the  necessary  or  un- 
avoidable result  of  the  wrongful  act,  but  that  it  shall  be  the 
natural  and  probable  consequence  of  it,  or  one  likely  to  en- 
sue from  it  We  have  endeavored  to  show  in  the  case  sup- 


Opinions  of  Chief  Justice  Dixon.  192 

posed,  and  in  that  before  the  court,  that  it  was  the  necessary 
or  almost  unavoidable  result.  The  court  admit  that  it  is 
not  unfrequent.  By  this  we  understand, — often  to  be  met 
with — often  repeated  or  occurring — not  a  particular  acci- 
dent, but  one  of  the  habitual  incidents  of  setting  fire  to  one 
of  several  houses  or  buildings  so  situated.  Is  it  not  then  a 
natural  and  probable  consequence,  one  likely  to  follow  from 
the  burning  of  the  first  ?  And  may  not  such  result  be  rea- 
sonably anticipated  or  expected  according  to  the  usual  ex- 
perience of  mankind?  If  the  running  over  a  person  in 
the  street  by  a  frightened  horse  which  has  escaped  from 
the  control  of  its  driver,  is,  according  to  common  experi- 
ence, a  result  reasonably  to  be  expected  from  the  breaking 
away  and  flight  of  the  horse,  or  if  breaking  the  leg  of  a 
pedestrian  by  the  shafts  of  a  truck  which  are  improperly 
shored  up  in  the  street,  and  which  truck  is  hit  by  the  truck 
of  a  third  person,  causing  the  shafts  to  whirl  round  and 
strike  the  leg,  be  a  result  reasonably  to  be  expected  from 
such  improper  shoring,  then  much  more  should  we  say 
that  the  burning  of  the  second,  third  and  Other  houses  in 
the  case  supposed,  was  a  result  reasonably  to  have  been  ex- 
pected from  the  fire  of  the  first.  A  slight  knowledge  of 
the  nature,  laws  and  force  of  fire  would  seem  to  demon- 
strate this. 

And  the  position  of  the  court  of  Pennsylvania,  by  the 
rule  laid  down  as  to  what  is  a  proximate  and  what  a  re- 
mote cause,  and  which  cuts  off  all  liability  and  all  remedy 
for  consequential  injuries  of  every  name  and  nature  in  ac- 
tions for  torts  and  wrongs,  seems  to  us  still  more  objection- 
able. Upon  the  doctrine  of  that  court,  the  escape  of  the 
horse  caused  by  the  careless  driving  of  the  defendant's  serv- 
ant, had  in  point  of  law  no  connection  with  the  injury  sub- 
sequently inflicted  upon  the  plaintiff.  It  was  the  remote 


193  Kellogg  v.  Chicago,  N.  W.  Ry.  Co. 

cause.  It  was  the  running  of  the  horse  after  its  escape 
from  the  driver's  control,  which  occasioned  the  injury,  and 
that  was  the  proximate  cause,  not  produced  by  the  careless- 
ness of  the  servant  and  not  rendering  his  master  respon- 
sible. And  so,  too,  in  the  case  of  the  broken  leg,  it  was 
the  driving  by  the  third  truckman  against  the  truck,  even 
though  he  used  due  care,  which  caused  the  injury,  unless 
the  court  would  go  on  still  further  and  consider  the  hitting 
of  the  truck  one  event  and  the  whirling  of  the  shafts  an- 
other. And  the  strange  misapplication  of  the  maxim  and  of 
the  case  supposed  by  Professor  Parsons,  quoted  at  the  outset 
of  the  opinion,  of  a  debtor  who  fails  to  meet  his  engage- 
ment with  his  creditor,  by  reason  of  which  the  creditor  fails 
to  meet  his,  and  is  thrown  into  bankruptcy  and  ruined,  is 
well  illustrated  by  two  cases  cited  and  the  comments  upon 
them  in  the  opinion  above  referred  to,  of  the  supreme  court 
of  M assachusetts.  The  court  say :  "Two  recent  cases,  both 
much  considered,  sound  and  consistent  with  each  other, 
well  illustrate  the  true  rule  of  law.  A  druggist  who  care- 
lessly labelled  belladonna,  a  deadly  poison,  as  extract  of 
dandelion,  a  harmless  medicine,  and  sent  it  so  labelled 
into  the  market,  was  held,  by  the  court  of  appeals  of  New 
York,  liable  in  damages,  after  it  had  passed  through  sev- 
eral intervening  hands,  had  been  purchased  by  an  apoth- 
ecary, and  administered  by  the  plaintiff  to  his  wife,  who 
was  injured  by  using  it  as  a  medicine,  in  consequence  of 
the  false  label.  Thomas  v.  Winchester,  2  Selden,  397. 
Here  the  dealer  owed  a  duty  to  the  public  not  to  expose 
human  life  to  danger  by  falsely  labelling  a  noxious  drug 
and  selling  it  in  the  market  as  a  harmless  article.  To  do 
so  was  culpable  and  actionable  negligence  towards  all  likely 
to  be  and  who  in  fact  were  injured  by  the  mistake.  And  the 
13 


Opinions  of  Chief  Justice  Dixon.  194 

injury  that  did  follow  was  the  naturally  and  easily  fore- 
seen result  of  the  carelessness. 

"On  the  other  hand,  where  one  article,  black  oxide  of 
manganese,  in  itself  harmless,  which  became  dangerous 
only  by  being  combined  with  another,  was  sold  by  mistake, 
the  plaintiff  who  purchased  it  of  a  third  party  and  mixed 
it  with  another  substance,  the  combination  with  which 
caused  a  dangerous  explosion,  as  held  by  this  court  to  have 
no  right  of  action  against  the  original  vendor  who  made 
the  mistake,  for  the  damages  caused  by  the  explosion. 
Davidson  v.  Nichols,  11  Allen,  514.  The  mistake  in  re- 
gard to  an  article  in  its  own  nature  ordinarily  harmless, 
in  the  absence  of  contract  or  false  representation,  was  not 
a  violation  of  any  public  duty,  or  negligence  of  such  a 
wrongful  and  illegal  character  as  to  render  the  party  who 
made  it  liable  for  its  consequences  to  third  persons.  Nor 
was  it  a  natural  and  probable  consequence  of  such  a  mis- 
take that  this  ordinarily  innocuous  substance  would  be 
mixed  with  another  chemical  agent,  become  explosive  by 
the  combination,  and  a  third  party  be  thereby  injured." 

The  case  of  a  debtor  who  fails  to  meet  his  engagement 
is  not  one  of  tort  or  wrong  in  any  legal  sense.  The  bank- 
ruptcy and  ruin  of  the  creditor  by  reason  of  such  failure 
is  not  a  result  likely  to  ensue,  a  natural  and  probable  one, 
from  the  fact  of  such  failure.  Ordinarily  it  produces  no 
•such  result,  and  is  not,  therefore,  reasonably  to  be  expected 
by  the  debtor.  In  rare  and  exceptional  cases  it  may  do 
so,  but  then  only  by  connection  or  alliance  with  other  cir- 
-cumstances  not  necessarily  known  to  the  debtor  and  of 
which  he  is  in  general  ignorant  and  without  the  means  of 
knowledge.  The  embarrassment  of  the  creditor,  the  extent 
of  his  engagements,  his  inability  to  meet  them,  and  all 


195  Kellogg  v.  Chicago,  N.  W.  Ry.  Co. 

other  circumstances  which  produce  his  bankruptcy  and 
ruin,  are  facts  usually  known  only  to  himself,  and  with 
reference  to  which  no  general  engagement  of  the  debtor  to 
pay  at  a  particular  time  can  be  presumed  to  have  been 
made.  And  the  decision  in  Insurance  Company  v,  Tweed, 
7  Wall.  (U.  S.)  45,  referred  to  by  the  same  court,  also 
very  clearly  sustains  our  views.  Discussing  the  doctrine 
of  proximate  and  remote  causes  as  it  has  arisen  and  been 
decided  by  the  courts  in  a  great  variety  of  cases,  the  cpinion 
says :  "One  of  the  most  reliable  of  the  criteria  furnished  us 
by  these  authorities,  is  to  ascertain  whether  any  new  cause 
has  intervened  between  the  fact  accomplished  and  the  al- 
leged cause.  If  a  new  force  or  power  has  intervened,  of 
itself  sufficient  to  stand  as  the  cause  of  the  misfortune,  the 
other  must  be  considered  as  too  remote. 

"In  the  present  case  we  think  there  is  no  such  new  cause. 
The  explosion  undoubtedly  produced  or  set  in  operation 
the  fire  which  burned  the  plaintiff's  cotton.  The  fact  that 
it  was  carried  to  the  cotton  by  first  burning  another  build- 
ing, supplies  no  new  force  or  power  which  caused  the 
I urning.  Nor  can  the  accidental  circumstance  that  the 
wind  was  blowing  in  a  direction  to  favor  the  progress  of 
fire  towards  the  warehouse,  be  considered  as  a  new  cause. 
That  may  have  been  the  usual  course  of  the  breeze  in  that 
neighborhood." 

Another  position  taken  by  the  learned  counsel  is,  that' 
the  dryness  of  the  weather  and  the  blowing  of  the  wind  at 
the  time  the  fire  was  set,  were  not  ordinary  but  extraordi- 
nary circumstances,  within  the  meaning  of  the  rule  above 
stated.  That  which  is  frequent  or  oft  repeated,  occurring 
year  by  year  with  almost  unvarying  regularity,  like  periods 
of  drouth  at  certain  times  and  seasons,  or  like  the  almost 
daily  blowing  of  the  winds  in  our  country,  cannot  be  re- 


Opinions  of  Chief  Justice  Dixon.  196 

garded  as  extraordinary.  These  are  ordinary  circum- 
stances in  the  completest  sense  of  the  word,  and  just  such 
as  persons  engaged  in  a1  dangerous  business  the  mischiefs 
of  which  may  be  thereby  enhanced,  are  bound  by  the  rule 
to  foresee,  and  by  increased  care  and  vigilance  to  guard 
against. 

Another  and  the  last  position  of  counsel  which  we  notice, 
is,  that  it  was  error  in  the  court  not  to  have  instructed  the 
jury  that  they  must  find  negligence  on  the  part  of  the  de- 
fendant with  respect  to  the  property  destroyed.  The  ques- 
tion was  not  so  put  to  the  jury,  but  by  a  general  instruction 
that  they  must  find  that  the  negligence  of  the  defendant 
produced  the  loss  and  injury  for  which  a  recovery  was 
sought.  The  question  whether  there  was  negligence  in  rela- 
tion to  the  property  destroyed,  is  undoubtedly  one  of  fact 
for  the  jury,  unless  there  is  a  total  want  of  evidence  tend- 
ing to  sustain  that  conclusion.  It  appears,  however,  from 
what  has  already  been  said,  that  in  our  judgment  there 
was  abundance  of  such  evidence  from  which  -the  jury  must 
have  so  found  the  fact,  had  the  point  been  thus  submitted  to 
them.  Granting,  therefore,  that  the  instructions  were  de- 
fective in  this  particular,  it  would  still  seem  to  follow  that 
the  judgment  ought  not  to  be  reversed.  It  is  a  settled  rule 
that  this  court  will  not  reverse  for  errors  in  the  instructions 
or  rulings  of  the  court  below,  where  it  is  clear  that  the  ver- 
dict and  judgment  could  not  have  been  different  on  the 
evidence.  Andrea  v.  Thatcher,  24  Wis.  471 ;  Ketchum  v. 
Zeilsdorff,  26  Wis.  514.  But  there  is  another  rule  of  prac- 
tice, also  well  settled,  which  would  forbid  such  reversal. 
The  general  charge  of  the  court,  or  instructions  given,  were 
clearly  correct,  embracing  all  the  points  necessary  for  the 
full  understanding  of  the  jury,  except  this  particular  one. 
In  such  case  the  rule  is,  that  if  a  party  desires  to  have  the 


197  Note  to  Kellogg  v.  Chicago,  N.  W.  Ry.  Co. 

jury  instructed  upon  a  particular  point,  not  embraced  in 
the  charge  given  by  the  court,  or  if  an  instruction  or  con- 
clusion of  law  merely  requires  modification  in  some  par- 
ticular or  particulars,  not  materially  affecting  its  general 
correctness,  an  exception  thereto  should  be  particular,  so 
as  to  call  the  attention  of  the  court  to  the  precise  point  of 
objection.  Browers  v.  Merrill,  3  Chand.  46;  Lachner  v. 
Salomon,  9  Wis.  129;  Knox  v.  Webster,  18  Wis.  406; 
Weisenberg  v.  The  City  of  Appleton,  26  Wis.  56 ;  North- 
western Iron  Co.  v.  Aetna  Insurance  Co.,  26  Wis.  78.  In 
this  case  there  was  only  a  general  exception,  which  was  in- 
sufficient. Had  the  attention  of  the  court  been  called  to 
the  point  now  urged,  the  instructions  would  unquestionably 
have  been  so  modified.  It  is  a  fact  appearing  from  the 
argument  of  the  case  in  this  court,  that  the  point  is  raised 
for  the  first  time  upon  this  application  and  argument  for  a 
rehearing. 

The  rehearing  must  be  denied. 

By  the  Court. — Rehearing  denied. 

NOTE. 

The  above  able  and  elaborate  opinion  is  one  of  the  most 
widely  cited  and  best  known  of  the  opinions  of  Ch.  J. 
Dixon. 

The  decision  has  been  uniformly  cited  with  approval 
and  is  a  most  able  exposition  of  the  doctrine  which  it  enun- 
ciates. That  doctrine,  to  quote  from  the  opinion  of  Potter 
J.  in  Reiper  v.  Nichols,  31  Hun.  495,  is  to  the  effect  that  "a 
person  guilty  of  negligence  is  to  be  held  responsible  for  all 
the  consequences  flowing  naturally  and  proximately  from 
the  negligent  cause,  and  that  diversity  of  ownership  of  the 
buildings  burnt,  or  the  lands  traversed  by  the  fire,  or  mere 
distance  of  locality,  or  the  period  of  time  between  the  burn- 
ing of  the  buildings,  do  not  necessarily  or  at  all  relieve 
from  liability  until  the  primal  cause  ceases  to  operate,  or 


Opinions  of  Chief  Justice  Dixon.  198 

the  chain  of  natural  and  proximate  cause  and  effect  have 
been  interfered  with  by  some  agency,  or  neglect  or  fault 
of  some  other  person  either  by  his  conduct  or  the  condition 
of  his  property."  The  Kellogg  case,  supra,  has  been  cited 
in  Wisconsin  with  approval  as  follows :  Whitney  v.  C.  & 
2SL  W.  Ey.  27  Wis.  348 ;  Spaulding  v.  Ry.  30  Wis.  116 ; 
Servatius  v.  Pickel,  34  Wis.  299 ;  Eead  v.  Morse,  34  Wis. 
315 ;  Wilson  v.  Noonan,  35  Wis.  358 ;  Stewart  v.  Ripon, 
38  Wis.  592 ;  Erd  v.  C.  &  K  W.  Ry.,  41  Wis.  67 ;  Murphy 
v.  C.  &  K  W.  Ry.,  45  Wis.  225  ;  Jucker  v.  C.  &  K  W.  Ry., 
52  Wis.  152 ;  Brown  v.  C.  &  K  W.  Ry.,  54  Wis.  355  ;  Gib- 
bons v.  Wis.  Valley  Ry.,  58  Wis.  343 ;  Brown  v.  Kayser, 
60  Wis.  7 ;  Atkinson  v.  Goodrich  Trans.  Co.,  60  Wis.  155  ; 
Marvin  v.  C.,  M.  &  St.  P.  Ry.,  79  Wis.  145 ;  Brown  v. 
Brooks  &  others,  85  Wis.  297;  Andrew  v.  C.,  M.  &  St.  P. 
Ry.,  96  Wis.  357;  Deisenrieter  v.  Kraus-Merkel  Malt- 
ing Co.,  97  Wis.  286 ;  Becker  v.  Chester,  115  Wis.  139. 

That  nothing  in  the  Kellogg  case  is  to  be  construed  as 
holding  that  a  land  owner  adjacent  to  a  railway  track  may 
not  by  contributory  negligence  defeat  a  recovery  of  dam- 
ages on  account  of  fire  originating  upon  the  track  of  the 
company,  is  made  clear  by  what  is  said  in  Murphy  v.  Chi- 
cago &  Northwestern  Railway,  45  Wis.  225,  supra;  see 
also  Clune  v.  Milwaukee  &  Northwestern  Railway  Com- 
pany, 75  Wis.  532. 

Kellogg  v.  Ry.  has  been  cited  with  approval  outside  of 
the  Wisconsin  Supreme  Court  as  follows:  L.  &  !N".  Ry.  v. 
Webb,  90  Ala.  192, 11  L.  R.  A.  677 ;  Ry.  Co.  v.  Fire  Assn., 
55  Ark.  177;  Travelers  Ins.  Co.  v.  Murray,  16  Colo.  304; 
J.  T.  &  K.  W.  Ry.  v.  P.  L.  T.  &  M.  Co.,  27  Fla.  116,  17 
L.  R  A.  56 ;  St.  J.  &  H.  Ry.  v.  Ransom,  33  Fla.  415 ;  Rod- 
emacher  v.  M.  &  St.  P.  Ry.,  41  la.  310 ;  Small  v.  C.  R.  I. 
&  P.  Ry.,  50  la.  355 ;  Small  v.  C.,  R.  I.  &  P.  Ry.,  55  la. 
593 ;  Pullman  Palace  Car  Co.  v.  Laack,  43  111.  260,  18 
L.  R  A.  220 ;  Toledo  Ry.  v.  Wand,  48  Ind.  479 ;  P.  C.  & 
St.  L.  Ry.  v.  Jones,  86  Ind.  500;  L.  K  A.  &  C.  Ry.  v. 
Krinning,  87  Ind.  355 ;  L.  N.  A.  &  C.  Ry.  v.  Falvey,  104 
Ind.  428 ;  L.  K  A.  &  C.  Ry.  v.  Wood,  113  Ind.  567 ;  C.  I. 
St.  L.  &  C.  Ry.  v.  Smock,  133  Ind.  417 ;  St.  J.  &  D.  C.  Ry. 


199  Note  to  Kellogg  v.  Chicago,  N.  W.  Ry.  Co. 

v.  Chase,  11  Kan.  56;  A.  T.  &  S.  F.  Ry.  v.  Stanford,  12 
Kan.  379;  K.  P.  Ky.  v.  Brady,  17  Kan.  384;  Central 
Branch  TJ.  P.  Ry.  v.  Hotham,  22  Kan.  52 ;  White  v.  M.  P. 
Ry.,  31  Kan.  282 ;  Mastin  v.  Levagood,  47  Kan.  42 ;  Lewis 
v.  Flint  &  Pere  Marquette  Ry.,  54  Mich.  58 ;  Wilder  v. 
Me.  Central,  65  Me.  340 ;  Jones  v.  Mich.  Central  Ry.,  59 
Mich.  440 ;  Johnson  v.  C.,  M.  &  St.  P.  Ry.,  31  Minn.  61 ; 
Clarke  v.  C.,  St.  P.,  M.  &  O.  Ry.,  33  Minn.  360 ;  Shumaker 
v.  St.  P.  &  Duluth  Ry.,  46  Minn.  43 ;  Fink  v.  Mo.  Furnace 
Co.,  10  Mo.  App.  69  ;  Moberly  v.  K.  C.,  St.  J.  &  C.  P.  Ry., 
17  Mo.  App.  543 ;  Clemens  v.  Hannibal  &  St.  J.  Ry.,  53 
Mo.  371 ;  Miller  v.  St.  L.  I.  M.  &  S.  Ry.,  90  Mo.  394;  Mat- 
thews v.  St.  L.  &  S.  F.  Ry.,  121  Mo.  298,  25  L.  R.  A.  74 ; 
Diamond  v.  K  P.  Ry.,  6  Mont.  589 ;  C.  L.  &  W.  Ry.  v. 
Fredenbur,  3  Ohio  Cir.  Ct  30 ;  Adams  v.  Young,  44  Ohio, 
80  and  note ;  McKennon  v.  Winn,  1  Okla.  327 ;  D.  L.  & 
W.  Ry.  v.  Salmon,  39  K  J.  Law,  305 ;  De  Camp  v.  Dob- 
bins, 29  K  J.  Eq.  44  note ;  Doggett  v.  R.  &  D.  Ry.,  78  K 
Car.  307,  312 ;  Rowell  v.  Ry.,  57  K  H.  138 ;  B.  &  M.  Ry. 
v.  Westover,  4  Neb.  276;  Reiper  v.  Nichols,  (K  Y.)  31 
Hun,  495,  22  Abb.  K  C.  381  (note  on  spread  of  fire)  ;  P. 
&  R.  Ry.  v.  Hendrickson,  80  Pa.  St.  190 ;  Oil  Co.  v.  King, 
6  Tex.  Civ.  Cas.  96 ;  H.  &  T.  C.  Ry.  v.  McDonough,  1  Tex. 
Ct.  App.  359 ;  Seale  v.  G.  C.  &  S.  F.  Ry.,  65  Tex.  278 ;  Ry. 
v.  Benson,  69  Tex.  410;  Clark  v.  Dyer,  81  Tex.  344;  R. 
&  D.  Ry.  v.  Medley,  75  Va.  507 ;  Snyder  v.  P.  C.  &  St.  L. 
Ry.,  11  W.  Va.  27 ;  Milwaukee  &  St.  P.  Ry.  v.  Kellogg, 
94  U.  S.  474;  Lusby  v.  A.  T.  &  S.  F.  Ry.,  41  Fed.  184; 
Marine  Ins.  Co.  v.  St.  L.  I.  M.  &  S.  Ry.,  41  Fed.  653 ;  Mc- 
Carthy v.  Traveler's  Ins.  Co.,  8  Biss/366. 

Valuable  collections  of  authorities  will  be  found  in  the 
following,  in  which  the  main  case  is  cited : 

Lawyer's  Reports  Annotated:  N.  C.  &  St.  L.  Ry.  v. 
Doane  (115  Ind.  435),1L.  R.A.158;  Knowlton  v.  K  Y. 
&  K  E.  Ry.,  (147  Mass.  606),  1  L.  R.  A.  627 ;  Marion  v. 
C.,  M.  &  St.  P.  Ry.  (79  Wis.  145),  11  L.  R.  A.  510;  L.  & 
K  Ry.  v.  Webb  (90  Ala.  192),  11  L.  R.  A.  677;  Roux 
v.  B.  &  D.  Lumber  Co.  (85  Mich.  519),  13  L.  R.  A.  733; 
Wilson  v.  Troy  (135  K  Y.  96),  18  L.  R.  A.  450;  Brown 


Opinions  of  Chief  Justice  Dixon.  200 

v.  Brooks  (85  Wis.  297),  21  L.  R.  A.  263;  McKennon  v. 
Winn  (1  Okla.  327),  22  L.  R.  A.  509;  Shumaker  v.  St.  P. 
&  D.  Ry.  (46  Minn.  39),  12. L.  R.  A.  259. 

American  State  Reports:  Kendrick  v.  Towle  (60  Mich. 
363),  1  Am.  St.  Rep.  532 ;  Arnold  v.  Pa.  Ry.  (115  Pa.  St. 
135),  2  Am.  St.  Rep.  546;  Gilson  v.  Del.  Canal  Co.  (65 
Vt.  213),  36  Am.  St.  Rep.  824. 

American  Reports:  C.  &  "N.  W.  Ry.  v.  Simonson  (54 
111.  504),  5  Am.  Rep.  157 ;  Flynn  v.  S.  E.  &  S.  J.  Ry.  (40. 
Cal.  14),  6  Am.  Rep.  600;  Jackson  v.  C.  &  K  W.  Ry.  (31* 
la.  176),  7  Am.  Rep.  122;  Salmon  v.  D.  L.  &  W.  Ry.  (9 
Vroom.  5),  20  Am.  Rep.  362;  Hoag  v.  L.  S.  &  M.  S,  Ry. 
(85  Pa.  St.  293),  27  Am.  Rep.  653 ;  L.  N.  A.  &  C.  Ry.  v. 
Richardson  (66  Ind.  43),  32  Am.  Rep.  98-;  Pa.  Co.  v.. 
Whitlock  (99  Ind.  16),  50  Am.  Rep.  81;  White  v.  Conly 
(14  Lea,  51),  52  Am.  Rep.  157. 

American  Decisions:  Burroughs  v.  Housa'tonic  Ry.  (15 
Conn.  124),  38  Am.  Dec.  72,  75  and  76;  Thomas  v.  Win- 
chester (6  K  Y.  397),  57  Am.  Dec.  461 ;  Fero  v.  B.  &  S. 
L.  Ry.  (22  K  Y.  209),  78  Am.  Dec.  185,  186;  Bass  v.  C. 
B.  &  Q.  Ry.  (28  HI.  9),  81  Am.  Dec.  259;  Barnes  v. 
Chapin  (86  Mass.  444),  81  Am.  Dec.  712;  Knox  v.  Web- 
ster (18  Wis.  406),  86  Am.  Dec.  783;  Ernst  v.  H.  R.  Ry. 
(35  K  Y.  9),  90  Am.  Dec.  787 ;  Ryan  v.  N.  Y.  C.  Ry.  (35 
1ST.  Y.  210),  91  Am.  Dec.  56;  McDonald  v.  Snelling  (96 
Mass;  290),  92  Am.  Dec.  777;  Perley  v.  Eastern  Ry.  (98 
Mass.  414),  96  Am.  Dec.  649,  650 ;  Strohn  v.  D.  &  M.  Ry. 
(23  Wis.  126),  99  Am.  Dec.  135;  Martin  v.  W.  K  Ry. 
(23  Wis.  437),  99  Am.  Dec.  193 ;  Ohio,  etc.,  Ry.  v.  Shane- 
felt  (47  111.  497),  95  Am.  Dec.  509. 

American  &  English  Railway  Cases:  P.  C.  &  St.  L. 
Ry.  v.  Noel  (77  Ind.  110),  7  A.  &  E.  Ry.  Cas.  537 ;  Shef- 
fer  v.  Washington  City  Ry.  (105  TJ.  S.  249),  8  A.  &  E. 
Ry.  Cas.  62;  White  v.  M.  P.  Ry.  (31  Kan.  280),  13  A. 
&  E.  Ry.  Cas.  475;  Brown  v.  A.  &  C.  Air  Line  Ry.  (19 
S.  Car.  39),  13  A.  &  E.  Ry.  Cas.  492;  Patton  v.  St.  L. 
&  S.  E.  Ry.  (87  Mo.  117),  23  A.  &  E.  Ry.  Cas.  369; 
Bowen  v.  St.  P.,  M.  &  M.  Ry.  (36  Minn.  522),  32  A.  & 
E.  Ry.  Cas.  372,  373;  Johnson  v.  K  P.  Ry.  (1  N.  Dak. 


201  Note  to  Kellogg  u  Chicago,  N.  W.  Ry.  Co. 

354),  45  A.  &  E.  Ey.  Gas.  564;  Northern  Pac.  By.  v. 
Lewis  (7  U.  S.  App.  254),  56  A.  &  E.  Ey.  Gas.  84;  Mat- 
hews  v.  St.  L.  &  S.  F.  Ey.  (121  Mo.  298),  61  A.  &  E.  Ey. 
Gas.  460. 

All  the  courts  profess  to  agree  that  the  jury  is  to  deter- 
mine whether  a  certain  effect  is  the  natural  and  proximate 
sequence  of  a  certain  cause ;  but,  to  quote  once  more  from 
Eeiper  v.  Nichols,  supra,  "the  states  of  New  York  &  Penn- 
sylvania hold  that  a  jury  should  not  be  allowed  to  find  that 
a  cause  is  proximate  beyond  the  first  effect;  that  is,  where 
the  building  which  is  fixed  as  a  first  effect,  itself  fires  the 
second,  and  the  second  the  third  building,  and  so  on  to  an 
indefinite  extent."  The  leading  case  in  New  York,  Evan 
v.  N.  Y.  Central  Ey.  (35  N.  Y.  210),  has  been  criticized, 
but  never  overruled  and  as  regards  the  state  of  facts  in 
question  is  the  law  of  New  York  to-day.  See  Hoffman  v. 
King,  160  N.  Y.  618 ;  Eead  v.  Nichols,  118  N.  Y.  229. 
Also  followed  in  Pennsylvania  Ey.  v.  Kerr,  62  Pa.  353; 
Hoag  v.  Ey.,  85  Pa.  293.  The  doctrine  of  the  Eyan  case, 
supra,  has  been  much  limited  and  qualified  in  the  follow- 
ing cases :  Webb  v.  Ey.  Co.,  49  N.  Y.  420 ;  Pollett  v.  Long, 
56  N.  Y.  200;  Cornish  v.  Farm  Buildings  Fire  Assn., 
74  N.  Y.  295 ;  Lowery  v.  Manhattan  Ey.,  99  N.  Y.  158 ; 
Martin  v.  Ey.,  62  Hun,  184;  O'Neil  v.  Ey.,  115  N.  Y. 
579;  Flinn  v.  N.  Y.  C.  &  H.  E.  E.  Ey.,  142  N.  Y.  11; 
Frace  v.  Ey.,  143  N.  Y.  189 ;  Travel  v.  Bannerman,  71  A. 
D.  (N.  Y.)  442. 


Opinions  of  Chief  Justice  Dixon.  202 


Hoyt  v.  The  City  of  Hudson. 

January  Term,  1871, 
(27  Wis.  656.) 

This  was  an  action  brought  in  the  Circuit  Court  of  St. 
Croix  County  to  recover  damages  claimed  to  have  accrued 
to  the  plaintiff  from  the  grading  and  raising  of  a  street 
in  the  City  of  Hudson,  whereby  the  water  running  through 
a  ravine  across  the  premises  of  the  plaintiff  adjacent  to  the 
street,  was  obstructed  in  its  flow  and  set  back  upon  the 
plaintiff's  premises.  The  plaintiff  alleged  that  this  flow 
of  water  constituted  a  natural  water-course,  running  across 
the  plaintiff's  land,  and  that  by  reason  of  the  embank- 
ment raised  in  grading  the  streets  of  the  city  the  waters 
of  this  water-course  so  accumulated  upon  plaintiff's  land 
as  to  form  a  stagnant  pool  in  close  proximity  to  plaintiff's 
house,  rendering  a  portion  of  said  real  estate  worthless. 
The  defendant  denied  the  existence  of  any  natural  water- 
course, alleged  that  the  grading  and  raising  of  the  street 
was  necessary  for  the  improvement  of  the  city,  and  that 
the  only  waters  obstructed  were  surface  waters.  There 
was  a  verdict  for  plaintiff  and  defendant  appealed. 

The  judgment  was  reversed  by  the  Supreme  Court  for 
the  reasons  stated  in  the  opinion  of  Chief  Justice  Dixon. 

The  other  facts  necessary  to  an  understanding  of  the 
opinion  are  stated  in  it. 

The  following  are  the  propositions  of  law  decided : 

A  "water-course"  is  a  stream  usually  flowing  in  a  par- 
ticular direction,  in  a  definite  channel,  and  discharg- 
ing into  some  other  stream  or  body  of  water;  and 
the  term  does  not  include  surface  water  conveyed 
from  a  higher  to  a  lower  level  for  limited  periods 


203  Hoyt  v.  The  City  of  Hudson. 

during  the  melting  of  snow,  or  during  or  soon  after 
the  fall  of  rain,  through  hollows  or  ravines  which  at 
other  times  are  dry. 

Although  the  owner  of  land  cannot  divert  from  its  natu- 
ral course  and  throw  upon  the  land  of  another,  to  his 
injury,  surface  water  falling  or  accumulating  upon 
his  own  land  (Pettigrew  v.  Evansville,  25  Wis.  223), 
yet  the  owner  of  lower  land  (acting  in  good  faith,  to 
secure  the  proper  enjoyment  and  use  of  his  own 
land),  may  lawfully  obstruct  the  flow  of  surface  water 
thereon  from  the  adjacent  higher  grounds  of  other 
proprietors,  and  in  so  doing  may  turn  the  water  back 
upon  such  adjacent  grounds,  or  off  from  his  own  land 
on  to  or  over  the  lands  of  another. 

Qwzre,  whether  there  may  be  an  exception  to  this  rule 
in  the  case  of  a  hilly  region  where  large  tracts  of  land 
are  drained  through  a  narrow  gorge,  and  would  be 
submerged  or  greatly  injured  by  its  obstruction,  so 
that  the  rule,  if  applied,  would  operate  adversely  to 
the  interests  of  agriculture. 

Cities,  towns,  and  villages,  as  owners  of  lands  for  high- 
ways and  other  public  purposes,  have  the  same  rights 
as  private  owners  to  obstruct  or  repel  the  flow  of  sur- 
face water. 

Where  the  passage  of  surface  water,  through  a  ravine  is 
obstructed  by  the  officers  or  agents  of  a  city  in  the 
construction  of  streets,  the  owner  of  adjacent  land  in- 
jured by  such  obstruction  cannot  recover  damages 
therefor. 

Dixon,  Chief  Justice.  In  Pettigrew  v.  The  Village  of 
Evansville,  25  Wis.  223,  this  court  had  occasion  to  ex- 
amine the  subject  and  express  its  views  very  fully  as  to  the 


Opinions  of  Chief  Justice  Dixon.  204 

rights  and  liabilities  of  conterminous  proprietors  of  lands 
with  respect,  to  the  obstruction  and  flow  of  mere  surface 
water;  and  to  say  when,  in  its  opinion,  and  under  what 
circumstances,  by  what  means,  and  to  what  extent,  the 
owner  of  land  might  obstruct  and  prevent  the  natural  and 
customary  flow  thereon  of  such  water,  and  turn  the  same 
back  upon  or  off  on  to  or  over  the  lands  of  others,  without 
liability  for  injuries  thus  caused  to  the  lands  of  other  pro- 
prietors. The  question  was  discussed  in  several  of  the 
aspects  in  which  it  has  arisen  and  been  considered  by  the 
courts,  and  many,  probably  most,  of  the  cases  relating  to 
it  cited  and  examined ;  and  an  attempt  was  made  to  point 
out  and  define  the  rights  and  duties  of  owners  of  lands  in 
those  particulars  which  heretofore  have  been  and  here- 
after doubtless  will  be  the  most  frequent  subject  of  contro- 
versy. The  result  of  that  examination  was,  that  this  court 
rejected  the  doctrine  of  dominant  and  servient  heritage 
of  the  civil  law  respecting  the  natural  flow  of  such  water, 
-which  is  the  rule  of  some  of  the  states,  and  adopted  the 
very  opposite  doctrine  of  the  common  law  of  England  as 
held  and  expounded  by  the  courts  of  that  country  and 
also  by  those  of  several  of  our  own  American  states.  The 
doctrine  of  the  civil  law  is,  that  the  owner  of  the  upper  or 
dominant  estate  has  a  natural  easement  or  servitude  in 
the  lower  or  servient  one,  to  discharge  all  waters  falling  or 
accumulating  upon  his  land,  which  is  higher,  upon  or  over 
the  land  of  the  servient  owner,  as  in  a  state  of  nature ;  and 
that  such  natural  flow  or  passage  of  the  water  cannot  be 
interrupted  or  prevented  by  the  servient  owner  to  the 
detriment  or  injury  of  the  estate  of  the  dominant  or  any 
other  proprietor.  Such  seems  to  be  the  rule  in  the  states 
of  Pennsylvania,  Iowa  and  Illinois,  and  perhaps  in  Mis- 
souri and  Ohio.  Kaufman  v.  Griesemer,  and  Martin  v. 


205 


Hoyt  v.  The  City  of  Hudson. 


Riddle,  26  Pa.  St.  407  and  415 ;  Livingston  v.  McDonald, 
21  Iowa,  160 ;  Gillham  v.  Madison  Co.  R.  R.  Co.,  49  111. 
484;  Laumier  v.  Francis,  23  Mo.  181;  Butler  v.  Peck,  16 
Ohio  St.  R.  334.  The  facts  in  the  Ohio  case  were  in  all 
material  respects  the  same  as  those  in  Pettigrew  v.  The 
Village  of  Evansville,  and  it  distinctly  affirms  the  same 
principle.  The  doctrine  of  the  common  law  is,  that  there 
exists  no  such  natural  easement  or  servitude  in  favor  of 
the  owner  of  the  superior  or  higher  ground  or  fields  as  to 
mere  surface  water,  or  such  as  falls  or  accumulates  by  rain 
or  the  melting  of  snow;  and  that  the  proprietor  of  the  in- 
ferior or  lower  tenement  or  estate  may,  if  he  choose,  law- 
fully obstruct  or  hinder  the  natural  flow  of  such  water 
thereon,  and  in  so  doing  may  turn  the  same  back  upon  or 
off  on  to  or  over  the  lands  of  other  proprietors,  without 
liability  for  injuries  ensuing  from  such  obstruction  or  di- 
version. This  is  the  rule  in  England,  and  in  Massachus- 
etts, New  York,  Connecticut,  Vermont,  New  Jersey  and 
New  Hampshire,  as  will  be  seen  by  the  authorities  cited  in 
Pettigrew  v.  The  Village  of  -Evansville,  and  also  the  fol- 
lowing: Bowlsby  v.  Speer,  31  New  Jersey  Law  Reports 
(2nd  Vroom.)  351;  Dickinson  v.  Worcester,  7  Allen,  19; 
Chatfield  v.  Wilson,  28  Vt.  49;  Sweet  v.  Cutts  (Sup.  Ct. 
N.  H.),  11  Am.  Law  Reg.  (N.  S.)  11;  Trustees  v.  You- 
mans,  50  Barb.  316 ;  Waffle  v.  N.  Y.  Central  Railroad  Co., 
58  Barb.  413.  Excluding  from  its  operation  surface  water 
falling  or  accumulating  on  his  own  land,  which,  as  de- 
cided in  Pettigrew  v.  The  Village  of  Evansville,  the  pro- 
prietor may  not  divert  or  cause  to  flow  upon  the  land  of 
another  to  his  injury,  the  rule  of  the  common  law  is  cor- 
rectly stated  in  Bowlsby  v.  Speer,  that  no  legal  right  of  any 
kind  can  be  claimed,  jure  naturae,  in  the  flow  of  surface 
water ;  so  that  neither  its  retention,  diversion  or  repulsion 


Opinions  of  Chief  Justice  Dixon.  206 

is  an  actionable  injury,  even  though  damage  ensue.  An 
examination  of  the  last  named  case  will  also  show  that  the 
case  of  Earl  v.  De  Hart,  1  Beas.  280,  cited  and  relied  upon 
in  argument  here,  has  been  virtually  overruled.  The  doc- 
trine of  dominant  and  servient  heritage,  so  far  as  it  may  be 
supposed  to  have  been  sustained  by  the  decision  of  the 
chancellor  and  his  conclusion  upon  the  facts  of  the  case  be- 
fore him,  which  were  in  all  material  respects  the  same  as  in 
Bowlsby  v.  Speer  and  in  this  case,  that  it  was  a  water- 
course or  stream  which  was  there  filled  up  and  obstructed, 
were  directly  and  emphatically  repudiated. 

Such  being  the  rule  of  the  common  law,  which  is  the 
law  of  this  state,  and  it  also  having  been  held  in  Pettigrew 
v.  The'  Village  of  Evansville,  that  cities,  towns  and  vil- 
lages, as  the  owners  of  lands  for  highway  and  other  public 
purposes,  have  the  same  rights  to  obstruct  or  repel  the  flow 
of  surface  water  as  other  proprietors,  it  follows  that  the 
plaintiffs  established  no  cause  of  action  against  the  city, 
unless  the  ravine  or  hollow  in  question  had  the  proper  qual- 
ities of,  and  constituted  what  is  known  in  law  as  a  water- 
course, as  distinguished  from  a  ravine,  hollow  or  other  de- 
pression in  land  through  which,  in  times  of  rains,  heavy 
showers  and  melting  snows,  the  surface  water  is  accus- 
tomed to  escape.  The  term  "water-course"  is  well  defined. 
There  must  be  a  stream  usually  flowing  in  a  particular  di- 
rection, though  it  need  not  flow  continually.  It  may  some- 
times be  dry.  It  must  flow  in  a  definite  channel,  having  a 
bed,  sides  or  banks,,  and  usually  discharge  itself  into  some 
other  stream  or  body  of  water.  It  must  be  something  more 
than  a  mere  surface  drainage  over  the  entire  face  of  a  tract 
of  land,  occasioned  by  unusual  freshets  or  other  extraordi- 
nary causes.  It  does  not  include  the  water  flowing  in  the 
.hollows  or  ravines  in  land,  which  is  the  mere  surface  water 


207  Hoyt  v.  The  City  of  Hudson. 

from  rain  or  melting  snow,  and  is  discharged  through  them 
from  a  higher  to  a  lower  level,  but  which  at  other  times  are 
destitute  of  water.  Such  hollows  or  ravines  are  not  in  legal 
contemplation  water-courses.  Shields  v.  Arndt,  3  Green's 
Ch.  234;  Luther  v.  Winnisimet  Co.,  9  Gush.  171;  Wash- 
burn  on  Easements,  209,  210. 

The  testimony  upon  this  point  has  been  correctly  col- 
lated by  counsel,  and  is  as  follows.  One  witness  testified: 
"A  ravine  ran  across  the  premises,  diagonally  in  a  south- 
westerly direction;  there  was  no  constant  stream  there; 
it  only  ran  there  during  wet  weather,  and  when  snow 
thawed."  Another:  "There  was  a1  ravine  across  the  prem- 
ises; the  water  ran  down  the  ravine  every  heavy  rain  we 
had."  Another:  "Water  has  always  run  through  the  ra- 
vines in  wet  seasons,  rain  or  thaw."  Another :  "I  know  the 
ravine  in  question;  the  water  runs  in  this  ravine  only  in 
the  spring  of  the  year  when  snow  goes  off,  and  in  very 
heavy  rains  or  long  continued  rains;  does  not  run  to  ex- 
ceed twenty  days  in  the  year;  no  water  runs  in  the  ravine 
except  as  I  have  stated ;  it  is  not  a  stream  with  banks,  but 
simply  a  sag  in  the  ground,  but  spreads  out  further  down, 
without  any  particular  channel."  Another  one  testified: 
"I  know  the  ravine  running  across  the  premises;  water 
runs  there  after  a  heavy  rain  and  melting  of  snow."  And 
another :  "During  melting  of  snow  and  heavy  rains,  water 
runs  in  this  ravine;  there  is  more  or  less  water  runs  in 
this  ravine  in  the  spring  and  fall;  during  wet  and  rainy 
weather,  after  the  ground  becomes  saturated  with  water,  a 
slight  rain  would  cause  water  to  run  down  the  ravine." 
And  the  seventh  and  last  witness  examined  said:  "Water 
has  run  in  this  ravine  after  heavy  rains  and  in  the  spring 
of  the  year ;  I  have  seen  a  flood  of  water  run  there  at  one 
time,  and  in  half  a  day  none  would  run  there ;  until  they 


Opinions  of  Chief  Justice  Dixon.  208 

made  the  ditch  back  of  the  court-house,  water  would  hold 
on  longer  than  now ;  a  month  longer." 

Such  is  a  statement  of  all  the  testimony  as  given  by  the 
witnesses  themselves;  from  which  we  think  it  clearly  ap- 
pears that  it  was  a  mere  occasional  flow  of  surface  water 
down  the  ravine  or  hollow  in  question,  which  was  ob- 
structed by  the  agents  and  officers  of  the  city,  and  not  a 
stream  or  water-course  within  the  meaning  of  the  law  on 
that  subject.  As  observed  in  some  of  the  decisions,  it 
would  be  highly  unreasonable  and  mischievous  to  attach 
the  legal  qualities  of  water-courses  to  ravines  and  hollows 
thus  serving  as  conduits  for  mere  occasional  accumulations 
of  surface  water ;  and  especially  would  it  be  so  within  the 
limits  of  large  towns,  cities  and  villages,  where  the  popu- 
lation is  dense  and  the  quantity  of  land  owned  or  occupied 
by  each  individual  or  family  very  small.  In  such  cases  the 
universal  understanding  and  practice  is,  that  owners  of 
lots  may  fill  them  up  or  change  their  natural  surface  to 
suit  their  own  tastes  or  convenience,  and  so  as  to  obstruct 
or  repel  the  surface  water  coming  from  the  lots  of  others, 
without  liability  for  injury;  and  that  the  public  authori- 
ties have  the  same  rights  and  privileges  with  respect  to 
streets,  squares  and  other  public  grounds.  In  such  cases 
and  as  to  such  property  the  doctrine  of  dominant  and  serv- 
ient  heritage  is  rejected  by  those  courts  which  hold  to  the 
rule  of  the  civil  law.  Bentz  v.  Armstrong,  8  Watts  &  Serg. 
40;  Livingston  v.  McDonald,  21  Iowa,  174. 

In  no  view  of  this  case,  therefore,  does  it  seem  that  the 
plaintiffs  established  any  cause  of  action.  ]STo  actionable 
negligence  or  carelessness  on  the  part  of  the  agents  or  offi- 
cers having  charge  of  the  work  was  shown.  The  work  of 
grading  the  street  was  skillfully  and  properly  done,  un- 
less the  omission  to  put  in  a  culvert  to  carry  off  the  sur- 


209  Hoyt  v.  The  City  of  Hudson. 

face  water  from  the  plaintiffs'  premises  made  it  otherwise. 
It  follows  from  what  has  already  been  said,  that  the  city 
was  not  bound  to  do  this ;  and,  besides,  it  has,  in  one  case 
at  least,  'been  held  on  general  principles  that  a  municipal 
corporation  is  not  liable  to  a  private  action  for  damages 
accruing  from  such  a  cause.  Mills  v.  City  of  Brooklyn,  32 
K.  Y.  489. 

In  Bowlsby  v.  Speer,  the  court,  first  stating  the  rule 
of  the  common  law,  that  no  right  of  any  kind  can  be 
claimed  in  the  mere  flow  of  surface  water,  and  that  neither 
its  retention,  diversion,  repulsion,  or  altered  transmission 
is  an  actionable  injury,  even  though  damage  ensues,  ob- 
serve: "How  far  it  may  be  necessary  to  modify  this  gen- 
eral proposition  in  cases  in  which  in  a  hilly  region,  from 
the  natural  formation  of  the  surface  of  the  ground,  large 
quantities  of  water,  in  times  of  excessive  rains,  or  from 
the  melting  of  heavy  snows,  are  forced  to  seek  a  channel 
through  gorges  or  narrow  valleys,  will  probably  require 
consideration  when  the  facts  of  the  case  shall  present  the 
question.  It  would  seem  that  such  anomalous  cases  might 
reasonably  be  regarded  as  forming  exceptions  to  the  gen- 
eral rule." 

This  exception,  or  suggested  exception,  seems  sound  and 
just  The  rule  itself  is  established  in  favor  of  agriculture, 
and  of  the  right  of  every  owner  to  make  the  most  profit- 
able use  of  his  own  land.  But  where,  in  such  exceptional 
cases,  it  appears  that  considerable  tracts  of  land  are 
drained  through  ravines  or  narrow  valleys,  and  would 
otherwise  be  submerged  or  greatly  injured  by  the  accumu- 
lation and  presence  of  surface  water,  so  that  the  rule  would 
operate  adversely  to  the  interests  of  agriculture  and  be 
productive  of  more  harm  than  good,  it  would  seem  that  i 
ought  to  give  way,  or  its  application  be  suspended.  At  all 
14 


Opinions  of  Chief  Justice  Dixon.  210 

events,  the  suggestion  presents  a  contingency,  or  possible 
class  of  cases,  with  respect  to  which  this  court  should  not 
be  regarded  as  having  expressed  any  opinion.  Nor  should 
the  court  be  understood  as  deciding  that  the  right  of  the 
land  owner  to  obstruct  or  divert  the  natural  flow  of  surface 
water  is  without  limit  or  qualification  by  what  may  be 
necessary  in  the  reasonable  use  and  improvement  of  his 
own  land.  He  may  not  do  so  wantonly  or  unnecessarily, 
or  from  mere  motives  of  malice.  In  Sweet  v.  Cutts,  the 
rule  established  is,  that  it  is  the  right  of  every  land  owner 
to  change  the  diffusion  of  surface  water  at  his  will  and 
pleasure,  provided  it  be  done  in  good  faith,  in  the  enjoy- 
ment and  for  the  greater  usefulness  of  his  own  land.  It 
is  not  the  intention,  nor  has  the  court  any  desire  here,  to 
anticipate  the  future,  or  to  lay  down,  or  attempt  to  lay 
down,  any  rule  for  the  decision  of  future  distinguishable 
cases.  Such  .cases  will,  and  can  only  properly,  be  decided 
when  they  arise.  The  decision  here  is  confined  strictly  to 
the  question  made  by  the  record  under  examination. 

By  the  Court. — Judgment  reversed,  and  a  new  trial 
awarded, 

NOTE. 

The  principal  value  of  Hoyt  v.  Hudson,  lies  in  the  dec- 
laration that  the  Wisconsin  Supreme  Court  has  adopted 
the  common  law  as  to  surface  water,  and  also  in  the  clear 
definition  or  description  given  of  what  constitutes  a  water- 
•course.  It  is  not  possible  to  harmonize  the  cases  on  this 
subject,  for  the  reason  that  the  courts  of  some  of  the  States 
have  adopted  the  rule  of  the  "civil  law,"  and  others  have 
.adopted  that  of  the  "common  law."  By  the  civil  law,  all 
waters,  whether  surface  water  or  that  flowing  in  what  are 
known  as  water-courses,  appear  to  be  regulated  by  the  same 
rule,  which  is,  that  the  flow  thereof  from  the  higher  to  the 
lower  ground  cannot  be  interfered  with.  He  who  has  the 
upper  grounds  cannot  change  the  course  of  surface  water 


211  Note  to  Hoyt  v.  The  City  of  Hudson. 

either  by  turning  the  water  some  other  way,  or  rendering 
it  more  rapid,  or  making  any  other  change  in  it  to  the  prej- 
udice of  the  owner  of  the  lower  grounds.  Neither  can  he 
who  has  the  lower  estate  do  anything  that  may  hinder  his 
grounds  from  receiving  the  water  which  they  would  nat- 
urally receive.  The  essence  of  the  common  law  rule  is  that 
one  may  do  what  he  pleases  with  his  property  regardless 
of  the  effect  upon  surface  water.  As  stated,  in  substance, 
in  the  main  case  no  legal  right  of  any  kind  can  be  claimed 
jure  naturae  in  the  flow  of  surface  water,  so  that  neither  its 
detention,  diversion  nor  repulsion  is  an  actionable  injury, 
even  though  damage  ensue. 

Even  within  the  States  which  have  adopted  one  rule  or 
the  other  respecting  surface  water,  the  cases  are  not  al- 
ways harmonious,  for  the  reason  that  it  is  next  to  impos- 
sible to  determine,  in  some  cases,  whether  moving  water  is 
to  be  considered  as  surface  water,  or  as  that  of  a  water- 
course, and  this  difficulty  is  augmented,  when  as  in  some 
cases  the  lower  estate,  so  far  from  desiring  to  get  rid  of 
the  water  which  flows  upon  it,  may  find  its  chief  or  only 
value  in  having  the  waters  come  to  it  as  in  a  state  of 
nature. 

A  rather  remarkable  illustration  of  this  difficulty  is  af- 
forded by  Case  v.  Hoffman,  supra,  reported  in  84  Wis- 
consin, and  also  in  100  Wisconsin.  In  that  case  there  were 
large  areas  of  land  devoted  to  the  cultivation  of  cranber- 
ries, which  received  the  supply  of  water  absolutely  neces- 
sary to  the  growth  and  protection  of  the  berries,  from  a 
lake  known  as  Big  Lake.  The  water  after  having  passed 
some  distance  from  Big  Lake,  however,  spread  out  over  a 
large  surface  and  for  a  long  distance  did  not  run  in  any 
fixed  and  clearly  defined  channels,  though  it  was  finally 
gathered  together  again  into  a  stream  with  continuous  bed 
and  banks.  The  defendants  by  diverting  the  flow  of  water 
from  Big  Lake  in  another  direction  prevented  the  waters 
thereof  from  reaching  the  lands  of  the  plaintiff,  rendering 
them  practically  valueless.  The  claim  of  the  defendants 
was  that  the  waters  thus  diverted  were  surface  waters, 
while  the  plaintiff  claimed  that  such  waters  were  those  of 


Opinions  of  Chief  Justice  Dixon.  212 

a  natural  water-course.  The  facts  in  the  case  being  fully 
pleaded  in  the  complaint,  the  Circuit  Court  sustained  a 
demurrer  to  the  complaint  on  the  ground  that  the  waters 
described  therein  merely  constituted  surface  water.  On 
appeal  to  the  Supreme  Court  of  Wisconsin,  the  order  sus- 
taining the  demurrer  was  reversed  by  a  divided  court,  and 
a  majority  of  the  court  declared  that  the  complaint  de- 
scribed a  natural  water-course.  The  members  of  the  court 
holding  this  view  were  Lyon,  Chief  Justice,  and  Associate 
Justices  Orton  and  Cassoday.  Associate  Justices  Winslow 
and  Pinney  dissented  and  agreed  with  the  view  taken  by 
the  Circuit  Judge.  The  case  thereupon  went  back  to  trial 
at  the  Circuit  upon  the  issue  of  water-course  or  no  water- 
course, and  it  was  found  as  a  fact  that  the  allegations  of 
the  complaint  were  true  and  that  the  waters  diverted  were 
those  of  a  natural  water-course.  Judge  Newman,  how- 
ever, who  had  sustained  the  demurrer  to  the  complaint  at 
the  Circuit,  had  in  the  meantime  become  a  member  of  the 
Supreme  Court,  and  the  trial  of  the  case  on  the  facts  was 
had  before  Judge  Bailey.  Upon  defendant's  appeal  to  the 
Supreme  Court  from  the  judgment  permanently  enjoining 
the  diversion  of  the  water,  the  members  of  that  court  again 
divided,  and  Associate  Justices  Winslow,  Pinney  and  Mr. 
Justice  Newman,  constituting  a  majority  of  the  court  as 
it  was  then  made  up,  held  that  the  finding  of  the  Trial 
Judge  was  against  the  evidence  and  reversed  the  judgment. 
Chief  Justice  Cassoday  and  Associate  Justice  Marshall 
vigorously  dissented.  A  motion  for  rehearing  was  made 
and  granted  on  the  ground  that  Mr.  Justice  Newman  was 
disqualified  to  sit  on  the  appeal,  since  he  had  tried  sub- 
stantially the  same  questions  at  the  Circuit  on  the  demur- 
rer to  the  complaint. 

The  death  of  Mr.  Justice  Newman  occurring  shortly 
thereafter,  his  place  on  the  Supreme  Bench  was  filled  by 
Mr.  Justice  Bardeen,  and  upon  the  final  reargument  of  the 
case  before  the  court  as  thus  constituted  a  majority  of  the 
court,  consisting  of  Chief  Justice  Cassoday  and  Associate 
Justices  Marshall  and  Bardeen,  affirmed  the  judgment  of 
the  trial  court  and  awarded  damages  and  made  the  injunc- 


213  Note  to  Hoyt  v.  The  City  of  Hudson. 

tion  permanent  in  plaintiff's  favor.     Associate  Justices 
Winslow  and  Pinney  still,  however,  dissented. 

The  foregoing  opinion  has  been  cited,  with  approval,  in 
Wisconsin,  as  follows :  Fryer  v.  Warne,  29  Wis.  515,  516 ; 
Eulrich  v.  Richter,  37  Wis.  229;  Spelman  v.  City  of 
Portage,  41  Wis.  148;  Allen  v.  City  of  Chippewa  Falls, 
52  Wis.  434;  O'Connor  v.  Fond  du  Lac,  etc.,  Ry.,  52  Wis. 
530,  531;  Ramsdale  v.  Foote,  55  Wis.  560,  561;  Waters 
v.  Village  of  Bay  View,  61  Wis.  644;  Lessard  v.  Stram, 
62  Wis.  114,  115,  116 ;  Heth  v.  City  of  Fond  du  Lac,  63 
Wis.  231 ;  Addy  v.  City  of  Janesville,  70  Wis.  406 ;  John- 
son v.  C.,  St.  P.,  M.  &  O.  Ry.,  80  Wis.  645,  14  L.  R.  A. 
497;  Champion  v.  Town  of  Crandon,  84  Wis.  407,  19  L. 
R.  A.  857 ;  Case  v.  Hoffman,  84  Wis.  444,  445,  20  L.  R. 
A.  42 ;  Schroeder  v.  City  of  Baraboo,  93  Wis.  100 ;  Borch- 
senius  v.  C.,  St.  P.,  M"  &  O.  Ry.,  96  Wis.  450 ;  Case  v. 
Hoffman,  100  Wis.  323 ;  Clauson  v.  C.  &  S".  W.  Ry.,  106 
Wis.  311,  312;  Blohowak  v.  Grochoski,  119  Wis.  195; 
Schrunk  v.  St.  Joseph,  120  Wis.  229 ;  Merkel  v.  German- 
town,  120  Wis.  497. 

Hoyt  v.  Hudson  has  been  commented  on  rather  disap- 
provingly in  Peck  v.  Herrington,  109  111.  617,  50  Am. 
Rep.  628 ;  Lambert  v.  Alcorn,  144  HI.  325, 21  L.  R.  A.  615. 

It  has  been  cited  with  approval  outside  of  the  Wiscon- 
sin Supreme  Court,  as  follows :  Taylor  v.  Fickas,  64  Ind. 
177,  31  Am.  Rep.  120 ;  Weis  v.  City  of  Madison,  75  Ind. 
256,  39  Am.  Rep.  146;  Rice  v.  City  of  EvansviUe,  108 
Ind.  13,  58  Am.  Rep.  26;  Comrs.  of  Carroll  County  v. 
Bailey,  122  Ind.  49 ;  Ross  v.  City  of  Clinton,  46  la.  614; 
Page  v.  Waverley,  105  la.  225,  40  L.  R.  A.  470 ;  Palmer 
v.  Waddell,  22  Kan.  357 ;  Gibbs  v.  Williams,  25  Kan. 
220,  37  Am.  Rep.  247 ;  K.  C.  &  E.  Ry.  v.  Riley,  33  Kan. 
377 ;  Morrison  v.  Bucksport  &  Bangor,  67  Me.  357 ;  Mayor 
&  C.  C.  of  Cumberland  v.  Willison,  50  Md.  156 ;  Burford 
v.  Grand  Rapids,  53  Mich.  101,  50  Am.  Rep.  106;  Greg- 
ory v.  Bush,  64  Mich.  42,  8  Am.  St.  Rep.  801 ;  Alden  v. 
City  of  Minneapolis,  24  Minn.  263 ;  O'Brien  v.  City  of 
St.  Paul,  25  Minn.  334,  336,  33  Am.  Rep.  473 ;  Rowe  v. 
St.  P.,  M.  &  M.  Ry.,  41  Minn.  386,  387,  16  Am.  St.  Rep. 


Opinions  of  Chief  Justice  Dixon.  214 

708 ;  Shane  v.  K.  C.,  St.  J.  &  C.  B.  Ey.,  71  Mo.  254,  36 
Am.  Kep.  490;  Benson  v.  C.  &  A.  Ey.,  78  Mo.  512,  514; 
Stewart  v.  City  of  Clinton,  79  Mo.  612 ;  Abbott  v.  K.  C., 
St.  J.  &  C.  B.  Ey.,  83  Mo.  286 ;  Eychlicki  v.  City  of  St. 
Louis,  98  Mo.  512,  513,  514,  522,  4  L.  E.  A.  598,  601 ; 
Jones  v.  W.  St.  L.  &  P.  Ey.,  18  Mo.  App.  257 ;  Schneider 
v.  Mo.  P.  Ey.,  29  Mo.  App.  72;  Burke  v.  Mo.  P.  Ey.,  29 
Mo.  App.  377 ;  St.  L.,  I.  M.  &  S.  Ey.  v.  Schneider,  30  Mo. 
App.  623 ;  Morrissey  v.  C.,  B.  &  Q.  Ey.,  38  Neb.  418 ; 
Jessop  v.  Bamford,  etc.,  Co.,  66  K.  J.  L.  641,  58  L.  E.  A. 
332;  Barkley  v.  Wilcox,  86  K  Y.  145,  40  Am.  Eep.  522 ; 
Franklin  v.  burgee,  71  N.  H.  186,  58  L.  E.  A.  113 ;  Eaton 
v.  B.,  C.  &  M.  E.  Ey.,  51  K  H.  532,  12  Am.  Eep.  177; 
West  v.  Taylor,  16  Ore.  172 ;  Simmons  v.  Winters,  21  Ore. 
40,  28  Am.  St.  Eep.  729 ;  G.,  C.  &  S.  F.  Ey.  v.  Helsley, 
62  Tex.  595 ;  Walker  v.  So.  P.  Ey.,  165  U.  S.  603 ;  C.,  V. 
&  C.  Ey.  v.  Brevoort,  62  Fed.  129,  25  L.  E.  A.  527. 

Hoyt  v.  Hudson,  supra,  has  also  been  cited  in  notes  to 
the  following  cases  reported  in  Am.  Dec.,  Am.  Eep.,  Am. 
&  Eng.  Ey.  Cas.  and  L.  E.  A.,  in  which  are  also  valuable 
collections  of  authorities. 

American  Decisions:  Martin  v.  Jett  (12  La.  501),  32 
Am.  Dec.  125  ;  Perry  v.  City  of  Worcester  (6  Gray,  544), 
66  Am.  Dec.  440 ;  Earl  v.  De  Hart  (1  Beasley's  Ch.  280), 
72  Am.  Dec.  702;  Butler  v.  Peck  (16  Oh.  St.  335),  88 
Am.  Dec.  457;  Livingstan  v.  McDonald  (21  la.  160),  89 
Am.  Dec.  572. 

American  Reports:  C.  &  V.  Ey.  v.  Stevens  (73  Ind. 
278),  38  Am.  Eep.  144. 

American  &  English  Railway  Cases:  Pfleger  v.  H.  &  D. 
Ey.  (28  Minn.  510),  5  Am.  &  Eng.  Ey.  Cas.  88 ;  Davidson 
v.  O.  &  C.  Ey.  (11  Ore.  136),  14  Am.  &  Eng.  Ey.  Cas. 
271 ;  L.  &  K  Ey.  v.  Hays  (11  Tenn.  382),  14  Am.  &  Eng. 
Ey.  Cas.  289 ;  P.  W.  &  B.  Ey.  v.  David  (68  Md.  281),  34 
Am.  &  Eng.  Ey.  Cas.  150. 

Lawyers'  Reports  Annotated:  Fulmer  v.  Williams  (122 
Pa.  St.  191),  1  L.  E.  A.  603;  Moellering  v.  Evans  (121 
Ind.  195),  6  L.  E.  A.  449 ;  O'Connell  v.  E.  T.  V.  &  G.  Ey. 
(87  Ga.  246),  13  L  E.  A.  395;  Wharton  v.  Stevens  (84 
la.  107),  15  L.  E.  A.  631. 


215  Sution  v.  Town  of  Wauwatosa. 


Button  v.  Town  of  Wauwatosa. 

June  Term,  1871. 
(29  Wis.  21.) 

This  was  an  appeal  from  the  Circuit  Court  of  Milwaukee 
County  from  a  judgment  of  non-suit.  It  appeared  from 
the  evidence  that  plaintiff  on  a  Sunday  was  engaged  in 
driving  about  fifty  cattle  to  market  at  Milwaukee  and  while 
crossing  a  public  bridge  over  the  Menomonee  river  on  that 
day,  the  bridge,  because  of  its  rotten  and  defective  condi- 
tion, gave  way  under  the  cattle  precipitating  them  into  the 
river  killing  some  and  injuring  others  and  causing  the  dam- 
age to  recover  which  plaintiff  brought  his  action.  The 
ground  of  the  non-suit  was  that  because  plaintiff  was  in 
the  act  of  violating  the  statute  of  the  state  by  driving  his 
cattle  to  market  on  Sunday  he  could  not  recover  for  the 
damage  occasioned  as  above  stated. 

The  following  are  the  propositions  of  law  decided : 

The  fact  that  plaintiff,  at  the  time  he  suffered  injuries 
to  his  person  or  property  from  the  negligence  of  de- 
fendant, was  doing  some  unlawful  act,  will  not  pre- 
vent a  recovery,  unless  the  act  was  of  such  a  character 
as  would  naturally  tend  to  produce  the  injury. 

Thus,  the  fact  that  plaintiff  was  driving  his  cattle  to 
market  on  Sunday,  in  violation  of  the  statute,  when 
they  were  injured  by  the  breaking  down  of  a  defec- 
tive bridge  which  the  defendant  town  was  bound  to 
maintain,  would  not  prevent  a  recovery  upon  due 
proof  of  defendant's  negligence  in  constructing  and 
maintaining  such  bridge. 

The  question  whether  plaintiff  was  guilty  of  contribu- 


Opinions  of  Chief  Justice  Dixon.  216 

tory  negligence,  in  driving  so  large  a  number  of  cattle 
as  he  did  upon  the  bridge  at  one  time,  should  be  left 
to  the  jury,  unless  the  evidence  is  decisive  not  only  as 
to  the  number  of  cattle  so  driven  upon  the  bridge,  but 
,also  as  to  the  weight  which  bridges  on  highways,  like 
the  one  in  question,  should  be  constructed  to  sustain. 
!A  plaintiff  should  not  be  non-suited  unless  it  appears 
that  the  evidence  in  his  behalf,  upon  the  most  favor- 
able construction  that  the  jury  would  be  at  liberty  to 
give  it,  would  not  warrant  a  verdict  for  him. 

Dixon,  Chief  Justice.  It  is  very  clear  that  the  plaintiff, 
in  driving  his  cattle  along  the  road  and  over  the  bridge,  to 
a  market,  on  Sunday,  was  at  the  time  of  the  accident  in 
the  act  of  violating  the  provisions  of  the  statute  of  this 
state,  which  prohibits,  under  a  penalty  not  exceeding  two 
dollars  for  each  offense,  the  doing  of  any  manner  of  labor, 
business  or  work  on  that  day,  except  only  works  of  neces- 
sity or  charity.  R.  S.,  c.  183,  sec.  5.  It  was  upon  this 
ground  the  non-suit  was  directed  by  the  court  below,  and 
the  point  thus  presented,  that  the  unlawful  act  of  the 
plaintiff  was  negligence,  or  a  fault  on  his  part  contributing 
to  the  injury,  and  which  will  preclude  a  recovery  against 
the  town,  is  not  a  new  one ;  nor  is  the  law,  as  the  court  be- 
low held  it  to  be,  without  some  adjudications  directly  in  its 
favor,  and  those  by  a  judicial  tribunal  as  eminent  and  much 
respected  for  its  learning  and  ability  as  any  in  the  country. 
Bosworth  v.  Swansey,  10  Met.  363;  Jones  v.  Andover,  10 
Allen,  18.  A  similar,  if  not  the  very  same  principle  has 
been  maintained  in  other  decisions  of  the  same  tribunal. 
Gregg  v.  Wyman,  4  Gush.  322 ;  May  v.  Foster,  1  Allen, 
408.  But  in  others  still,  as  we  shall  hereafter  have  occasion 
to  observe,  the  same  learned  court  has,  as  it  appears  to  us, 


1217  Sutton  v.  Town  of  Wauwalosa. 

held  to  a  different  and  contradictory  rule  in  a  class  of  cases 
which  it  would  seem  ought  obviously  to  be  governed  by  the 
same  principle.  The  two  first  above  cases  were  in  all  ma- 
terial respects  like  the  present,  and  it  was  held  there  could 
be  no  recovery  against  the  towns.  In  the  first,  the  opinion, 
delivered  by  Chief  Justice  Shaw,  and  which  is  very  short, 
commences  with  a  statement  of  the  proposition,  repeatedly 
decided  by  that  court,  "that  to  maintain  the  action  it  must 
appear  that  the  accident  was  occasioned  exclusively  by  the 
defect  of  the  highway;  to  establish  which,  it  must  appear 
that  the  plaintiff  himself  is  free  from  all  just  imputation 
of  negligence  or  fault."  The  authorities  to  this  proposi- 
tion are  cited,  and  the  statute  against  the  pursuit  of  sec- 
ular business  and  travel  on  the  Lord's  day  then  referred 
to,  and  the  opinion  proceeds:  "The  act  of  the  plaintiff, 
therefore,  in  doing  which  the  accident  occurred,  was  plainly 
unlawful,  unless  he  could  bring  himself  within  the  ex- 
cepted  cases;  and  this  would  be  a  species  of  fault  on  his 
part,  which  would  bring  him  within  the  principle  of  the 
cases  cited.  It  would  show  that  his  own  unlawful  act  con- 
curred in  causing  the  damage  complained  of."  This  is  all 
•of  the  opinion  touching  the  point  under  consideration. 

In  the  next  case  there  was  a  little,  and  but  a  little,  more 
effort  at  reasoning  upon  the  point.  The  illustrations  on 
page  20,  of  negligence  in  a  railway  company  in  omitting 
to  ring  the  bell  of  the  engine,  or  to  sound  the  whistle  at 
the  crossing  of  a  highway,  and  of  the  traveler  on  the  wrong 
side  of  the  road  with  his  vehicle  at  the  time  of  the  collision, 
and  the  language  of  the  court  alluding  to  such  "conduct  of 
the  party  as  contributing  to  the  accident  or  injury  which 
forms  the  ground-work  of  the  action,"  very  clearly  indi- 
cate the  true  ground  upon  which  the  doctrine  of  contribu- 
tory negligence,  or  want  of  due  care  in  the  plaintiff,  rests, 


Opinions  of  Chief  Justice  Dixon.  218 

but  it  is  not  shown  how  or  why  the  mere  violation  of  a 
statute  by  the  plaintiff  constitutes  such  ground.  Upon  this 
point  the  court  only  say :  "It  is  true  that  no  direct  unlaw- 
ful act  of  omission  or  commission  by  the  plaintiff,  done  at 
the  moment  when  the  accident  occurred,  and  tending  imme- 
diately to  produce  it,  is  offered  to  be  shown  in  evidence. 
But  it  is  also  true  that,  if  the  plaintiff  had  not  been  en- 
gaged in  the  doing  of  an  unlawful  act,  the  accident  would 
not  have  happened,  and  the  negligence  of  the  defendants  in 
omitting  to  keep  the  road  in  proper  repair  would  not  have 
contributed  to  produce  an  injury  to  the  plaintiff.  It  is  the 
disregard  of  the  requirements  of  the  statute  by  the  plaint- 
iff, which  constitutes  the  fault  or  want  of  due  care,  which 
is  fatal  to  the  action."  It  would  seem  from  this  language 
that  the  violation  of  the  statute  by  the  plaintiff  is  regarded 
only  as  a  species  of  remote  negligence,  or  want  of  proper 
care  on  his  part,  contributing  to  the  injury. 

The  two  other  cases  above  cited  were  actions  of  tort  by 
the  owners,  to  recover  damages  from  the  bailees  for  in- 
juries to  personal  property  loaned  and  used  on  Sunday — 
horses  loaned  and  immoderately  driven  on  that  day.  They 
were  decided  against  the  plaintiffs,  and  chiefly  on  the 
ground  of  the  unlawfulness  of  the  act  of  loaning  or  letting 
on  Sunday  of  the  horses,  to  be  driven  on  that  day  in  viola- 
tion of  the  statute,  which  the  plaintiffs  themselves  were 
obliged  to  show,  and  the  doctrine  of  par  delictum  was  ap- 
plied. It  was  in  substance  held  in  each  case  that  the 
plaintiff,  by  the  first  wrong  committed  by  him,  had  placed 
himself  in  pari  delicto  with  the  defendant,  with  respect  to 
the  subsequent  and  distinct  wrong  committed  by  the  latter, 
and  the  actions  were  dismissed  upon  the  principle  that  the 
law  will  not  permit  a  party  to  prove  his  own  illegal  acts  in 
order  to  establish  his  case. 


Sutton  v.  Town  of  Wauzaatosa* 

In  direct  opposition  to  the  above  decisions  are  the  nu- 
merous cases  cited  decided  by  the  courts  of  other  states,  the 
supreme  court  of  the  United  States,  and  the  courts  of  Great 
Britain,  which  have  been  so  diligently  collected  and  ably 
and  forcibly  presented  in  the  brief  of  the  learned  counsel 
for  the  present  plaintiff.  Of  the  cases  thus  cited,  with 
some  others,  we  make  particular  note  of  the  following: 
Woodman  v.  Hubbard,  5  Foster,  67 ;  Mohney  v.  Cook,  26 
Penn.  342 ;  Norris  v.  Litchfield,  35  K  H.  271 ;  Corey  v. 
Bath,  ib.  530;  Merritt  v.  Earle,  29  K  Y.  115;  Bigelow  v. 
Reed,  51  Maine,  325;  Hamilton  v.  Goding,  55  id.  428; 
Baker  v.  The  City  of  Portland,  59  ib.  199 ;  Kerwhacker  v. 
Railway  Co.,  3  Ohio  St.  172;  Phila.,  etc.,  Railway  Co.  v. 
Phila.,  etc.,  Tow  Boat  Co.,  23  How.  (U.  S.)  209;  Bird  v. 
Holbrook,  4  Bing.  628 ;  Barnes  v.  Ward,  9  M.-  G.  &  S.  420. 

It  seems  quite  unnecessary,  if  indeed  it  were  possible, 
to  add  anything  to  the  force  of  conclusiveness  of  the  rea- 
sons assigned  in  some  of  these  cases  in  support  of  the  views 
taken  and  decisions  made  by  the  courts.  The  cases  may 
be  summed  up  and  the  result  stated  generally  to  be  the 
affirmance  of  two  very  just  and  plain  principles  of  law  as 
applicable  to  civil  actions  of  this  nature,  namely :  first,  that 
one  party  to  the  action,  when  called  upon  to  answer  for  the 
consequences  of  his  own  wrongful  act  done  to  the  other,, 
cannot  allege  or  reply  the  separate  or  distinct  wrongful  act 
of  the  other,  done  not  to  himself  nor  to  his  injury,  and  not 
necessarily  connected  with,  or  leading  to,  or  causing  or  pro- 
ducing the  wrongful  act  complained  of ;  and,  secondly,  that 
the  fault,  want  of  due  care  or  negligence  on  the  part  of  the 
plaintiff,  which  will  preclude  a  recovery  for  the  injury 
complained  of,  as  contributing  to  it,  must  be  some  act  or 
conduct  of  the  plaintiff  having  the  relation  to  that  injury 
of  a  cause  to  the  effect  produced  by  it.  Under  the  opera- 


Opinions  of  Chief  Justice  Dixon.  220 

tion  of  the  first  principle,  the  defendant  cannot  exonerate 
himself  or  claim  immunity  from  the  consequences  of  his 
own  tortious  act,  voluntarily  or  negligently  done  to  the  in- 
jury of  the  plaintiff,  on  the  ground  that  the  plaintiff  has 
been  guilty  of  some  other  and  independent  wrong  or  viola- 
tion of  law.  Wrongs  or  offenses  cannot  be  set  off  against 
each  other  in  this  way.  "But  we  should  work  a  confusion 
of  relations,  and  lend  a  very  doubtful  assistance  to  moral- 
ity," say  the  court  in  Mohney  v.  Cook,  "if  we  should  allow 
one  offender  against  the  law  to  the  injury  of  another,  to  set 
off  against  the  plaintiff  that  he  too  is  a  public  offender." 
Himself  guilty  of  a  wrong,  not  dependent  on  nor  caused  by 
that  charged  against  the  plaintiff,  but  arising  from  his  own 
voluntary  act  or  his  neglect,  the  defendant  cannot  assume 
the  championship  of  public  rights,  nor  to  prosecute  the 
plaintiff  as  an  offender  against  the  laws  of  the  state,  and 
thus  to  impose  upon  him  a  penalty  many  times  greater  than 
what  those  laws  prescribe.  Neither  justice  nor  sound  mor- 
als require  this,  and  it  seems  contrary  to  the  dictates  of 
both  that  such  a  defense  should  be  allowed  to  prevail.  It 
would  extend  the  maxim,  ex  turpi  causa  non  oritur  actio, 
beyond  the  scope  of  its  legitimate  application,  and  violate 
the  maxim  equally  binding  and  wholesome,  and  more  ex- 
tensive in  its  operation,  that  no  man  shall  be  permitted  to 
take  advantage  of  his  own  wrong.  To  take  advantage  of 
his  own  wrong,  and  to  visit  unmerited  and  over  rigorous 
punishment  upon  the  plaintiff,  constitute  the  sole  motive 
for  such  defense  on  the  part  of  the  person  making  it.  In 
the  cases  of  the  horses  let  to  be  driven  on  Sunday,  so  far  as 
the  owners  were  obliged  to  resort  to  an  action  on  the  con- 
tract which  was  executory  and  illegal,  of  course  there 
could  be  no  recovery ;  but  to  an  action  of  tort,  founded  not 
on  the  contract,  but  on  the  tort  or  wrong  subsequently  com- 


Sutton  v.  Town  of  Wauwatosa. 

mitted  by  the  defendant,  the  illegality  of  the  contract  fur- 
nished no  defense,  as  is  clearly  demonstrated  in  Woodman 
v.  Hubbard,  and  the  cases  there  cited.  The  decisions  un- 
der the  provision  of  the  constitution  of  this  state  abolish- 
ing imprisonment  for  debt  arising  out  of  or  founded  on  a 
contract  express  or  implied,  and  some  others  in  this  court, 
strongly  illustrate  the  same  distinction.  In  re  Mowry,  12 
Wis.  52,  56,  57;  Cotton  v.  Sharpstein,  14  Wis.  229,  230; 
Scheunert  v.  Kaehler,  23  Wis.  523,  527. 

And  as  to  the  other  principle  that  the  act  or  conduct  of 
the  plaintiff,  which  can  be  imputed  to  him  as  a  fault,  want 
of  due  care  or  negligence  on  his  part  contributing  to  the 
injury,  must  have  some  connection  with  the  injury  as 
cause  to  effect,  this  also  seems  almost  too  clear  to  require 
thought  or  elaboration.  To  make  good  the  defense  on  this 
ground,  it  must  appear  that  a  relation  existed  between  the 
act  or  violation  of  law  on  the  part  of  the  plaintiff,  and  the 
injury  or  accident  of  which  he  complains,  and  that  rela- 
tion must  have  been  such  as  to  have  caused  or  helped  to 
cause  the  injury  or  accident,  not  in  a  remote  or  speculative 
sense,  but  in  the  natural  and  ordinary  course  of  events  as 
one  event  is  known  to  precede  or  follow  another.  It  must 
have  been  some  act,  omission  or  fault  naturally  and  ordi- 
narily calculated  to  produce  the  injury,  or  from  which  the 
injury  or  accident  might  naturally  and  reasonably  have 
been  anticipated  under  the  circumstances.  It  is  obvious 
that  a  violation  of  the  Sunday  law  is  not  of  itself  an  act, 
omission  or  fault  of  this  kind,  with  reference  to  a  defect 
in  the  highway  or  in  a  bridge  over  which  a  traveler  may 
be  passing,  unlawfully  though  it  may  be.  The  fact  that 
the  traveler  may  be  violating  this  law  of  the  state,  has  no 
natural  or  necessary  tendency  to  cause  the  injury  which 
may  happen  to  him  from  the  defect.  All  other  conditions 


Opinions  of  Chief  Justice  Dixon.  222 

and  circumstances  remaining  the  same,  the  same  accident 
or  injury  would  have  happened  on  any  other  day  as  well. 
The  same  natural  causes  would  have  produced  the  same 
result  on  any  other  day,  and  the  time  of  the  accident  or  in- 
jury, as  that  it  was  on  Sunday,  is  wholly  immaterial  so 
far  as  the  cause  of  it  of  the  question  of  contributory  negli- 
gence is  concerned.  In  this  respect  it  would  be  wholly 
immaterial  also  that  the  traveler  was  within  the  exceptions 
of  the  statute,  and  traveling  on  an  errand  of  necessity  or 
charity,  and  so  was  lawfully  upon  the  highway. 

The  mere  matter  of  time,  when  an  injury  like  this  takes 
place,  is  not  in  general  an  element  which  does  or  can  enter 
at  all  into  the  consideration  of  the  cause  of  it.  Time  and 
place  are  circumstances  necessary  in  order  that  any  event 
may  happen  or  transpire,  but  they  are  not  ordinarily,  if 
they  ever  are,  circumstances  of  cause  in  transactions  of 
this  nature.  There  may  be  concurrence  or  connection  of 
time  and  place  between  two  or  three  or  more  events,  and 
yet  one  event  not  have  the  remotest  influence  in  causing  or 
producing  either  of  the  others.  A  traveler  on  the  high- 
way, contrary  to  the  provisions  of  the  statute,  yet  peace- 
ably and  quietly  pursuing  his  course,  might  be  assaulted 
and  robbed  by  a  highwayman.  It  would  be  difficult  in 
such  case  to  perceive  how  the  highwayman  could  connect 
the  unlawful  act  of  the  traveler  with  his  assault  and  rob- 
bery so  as  to  justify  or  excuse  them,  or  how  it  could  be  said, 
that  the  former  had  any  natural  or  legitimate  tendency  to 
cause  or  produce  the  latter.  It  is  true,  it  might  be  said,  if 
the  traveler  had  not  been  present  at  that  particu]ar  time 
or  place,  he  would  not  have  been  assaulted  and  robbed,  but 
that  too  might  be  said  of  any  other  assault  or  robbery  com- 
mitted upon  him ;  for  if  his  presence  at  one  time  and  place 
be  a  fault  or  wrong  on  his  part,  contributing  to  the  assault 


Sutton  v.  Town  of  Waawatosa. 

and  robbery  in  the  nature  of  cause  to  effect,  it  must  be 
equally  so  at  every  other  time  and  place,  and  so  always  a 
defense  in  the  mouth  of  the  highwayman.  Every  high- 
wayman must  have  his  opportunity  by  the  passing  of  some 
traveler,  and  so,  some  one  must  pass  over  a  rotten  and  un- 
safe bridge  or  defective  highway  before  any  accident  or 
injury  can  happen  from  that  cause.  Connection,  there- 
fore, merely  in  point  of  time,  between  the  unlawful  act 
or  fault  of  the  plaintiff,  and  the  wrong  or  omission  of 
the  defendant,  the  same  being  in  other  respects  discon- 
nected, and  independent  acts  or  events,  does  not  suffice  to 
establish  contributory  negligence  or  to  defeat  the  plaintiff's 
action  on  the  ground.  As  observed  in  Mohney  v.  Cook, 
such  connection,  if  looked  upon  as  in  any  sense  a  cause, 
whether  sacred  and  mysterious  or  otherwise,  clearly  falls 
under  the  rule  causa  proxima  non  remota  spectatur. 

"The  cause  of  an  event,"  says  Appleton,  C.  J.,  in  Moul- 
ton  v.  Sanford,  51  Maine,  134,  "is  the  sum  total  of  the 
contingencies  of  every  description,  which  being  realized, 
the  event  invariably  follows.  It  is  rare,  if  ever,  that  the 
invariable  sequence  of  events  subsists  between  one  an- 
tecedent and  one  consequent.  Ordinarily  tnat  condition 
is  usually  termed  the  cause,  whose  share  in  the  matter  is 
the  most  conspicuous  and  is  the  most  immediately  preced- 
ing and  proximate  to  the  event." 

In  the  present  case  the  weight  of  the  same  cattle,  upon 
the  same  bridge,  either  the  day  before  or  the  day  after  the 
event  complained  of,  when  the  plaintiff  would  have  been 
guilty  of  no  violation  of  law  in  driving  them,  would  most 
unquestionably  have  produced  the  same  injurious  result. 
And  if,  on  that  day  even,  the  driving  had  been  a  work  of 
necessity  or  charity,  as  if  the  city  of  Milwaukee  had  been 
in  great  part  destroyed  by  fire,  as  Chicago  recently  was, 


Opinions  of  Chief  Justice  Dixon.  224 

and  great  numbers  of  her  inhabitants  in  a  condition  of 
helplessness  and  starvation,  and  the  plaintiff  hurrying  up 
his  drove  of  beef  cattle  for  their  relief,  no  one  doubts  the 
same  accident  would  then  have  happened,  and  the  same 
injuries  have  ensued.  The  law  of  gravitation  would  not 
then  have  been  suspended,  nor  would  the  rotten  and  de- 
fective stringers  have  refused  to  give  way  under  the  su- 
perincumbent weighj^  precisely  as  they  did  do  on  the  pres- 
ent occasion.  There  are  many  other  violations  of  law, 
which  the  traveler  or  other  person  passing  along  the  high- 
way may,  at  the  time  he  receives  an  injury  from  a  defect 
in  it,  be  in  the  act  of  committing,  and  which  are  quite  as 
closely  connected  with  the  injury,  or  the  cause  of  it,  as  is 
the  violation  of  which  complaint  is  made  against  the  pres- 
ent plaintiff.  He  may  be  engaged  in  cruelly  beating  or 
torturing  his  horse,  or  ox,  or  other  animal;  he  may  be  in 
the  pursuit  of  game,  with  intent  to  kill  or  destroy  it,  at  a 
season  of  the  year  when  this  is  prohibited ;  he  may  be  ex- 
posing game  for  sale,  or  have  it  in  his  possession,  when 
these  are  unlawful ;  he  may  be  in  the  act  of  committing  an 
assault,  or  resisting  an  officer;  he  may  be  fraudulently 
passing  a  toll  gate,  without  paying  his  toll;  and  he  may 
be  unlawfully  setting  or  using  a  net  or  seine,  for  the  pur- 
pose of  catching  fish,  in  an  inland  lake  or  stream. 

All  of  these  are  acts  prohibited  by  the  same  chapter  or 
statute  in  which  we  find  the  prohibition  from  work  and 
labor  on  Sunday,  and  some  of  them  under  the  same,  but 
most  under  a  greater  penalty  than  is  prescribed  for  that 
offense,  thus  showing  the  character  or  degree  of  culpability 
which  was  variously  attached  to  them  in  the  opinion  of 
the  legislature.  And  there  are  many  other  minor  offenses, 
mala  prohibita  merely,  created  by  statute,  which  might  be 
in  like  manner  committed.  There  are  in  Massachusetts, 


225  Sulton  v.  Town  of  Wauwatosa. 

and  doubtless  in  many  of  the  states,  statutes  against  blas- 
phemy and  profane  cursing  and  swearing,  the  prevention 
of  which  seems  to  be  equally  if  not  more  an  object  of  so- 
licitude and  care  on  the  part  of  the  legislature,  than  the 
prevention  of  labor,  travel  or  other  secular  pursuits  on 
Sunday,  because  more  severely  punished.  It  has  not  yet 
transpired  we  believe,  even  in  Massachusetts,  that  the  ac- 
tion of  any  person  to  recover  damages  for  an  injury  sus- 
tained by  reason  of  defects  in  a  highway,  has  been  per- 
emptorily dismissed  because  he  was  engaged  at  the  time 
in  profane  cursing  or  swearing,  or  because  he  was  in  a  state 
of  voluntary  intoxication,  likewise  prohibited  under  pen- 
alty by  statute. 

It  is  obvious  that  the  breaking  down  of  a  bridge  from 
the  rottenness  of  the  timbers,  or  their  inability  to  sustain 
the  weight  of  the  person  or  his  horses  and  carriage,  could 
not  be  affected  by  either  of  these  circumstances,  and  yetr 
on  the  principle  of  the  decisions  above  referred  to  in  that 
state,  it  is  not  easy  to  see  why  the  action  must  not  be  dis- 
missed. On  principle  there  could  be  no  discrimination 
between  the  cases,  and  it  could  make  no  difference  in  what 
the  unlawful  act  of  the  plaintiff  consisted  at  the  time  of 
receiving  the  injury.  We  must  reject  the  doctrine  of 
those  cases  entirely  and  adopt  that  of  the  other  cases  cited, 
and  which  is  well  expressed  by  the  supreme  court  of  Maine, 
in  Baker  v.  Portland,  59  Maine,  199,  204,  as  follows: 
"The  defendant's  counsel  contends  that  the  simple  fact 
that  the  plaintiff  is  in  the  act  of  violating  the  law,  at  the 
time  of  the  injury,  is  a  bar  to  the  right  of  recovery.  Un- 
doubtedly there  are  many  cases  where  the  contemporaneous 
violation  of  the  law  by  the  plaintiff  is  so  connected  with 
his  claim  for  damages  as  to  preclude  his  recovery;  but  to 
lay  down  such  a  rule  as  the  counsel  claims,  and  disregard 
15 


Opinions  of  Chief  Justice  Dixon.  226 

the  distinction  in  the  ruling  of  which  he  complains,  would 
be  productive  oftentimes  of  palpable  injustice.  The  fact 
that  a  party  plaintiff  in  an  action  of  this  description  was 
at  the  time  of  the  injury  passing  another  wayfarer  on  the 
wrong  side  of  the  street,  or  without  giving  him  half  the 
road,  or  that  he  was  traveling  on  runners  without  bells, 
in  contravention  of  the  statute,  or  that  he  was  smoking  a 
cigar  in  the  street,  in  violation  of  municipal  ordinance, 
while  it  might  subject  the  offender  to  a  penalty,  will  not 
excuse  the  town  for  a  neglect  to  make  its  ways  safe  and 
convenient  for  travelers,  if  the  commission  of  the  plaint- 
iff's offense  did  not  in  any  degree  contribute  to  produce  the 
injury  of  which  he  complains." 

Strong  analogy  is  afforded  and  much  weight  and  force 
of  reason  bearing  upon  this  question  are  found  in  some  of 
the  cases  which  have  arisen  upon  life  policies,  and  as  to 
the  meaning  and  effect  to  be  given  to  the  condition  usually 
contained  in  them,  exempting  the  company  from  liability 
in  case  the  assured  "shall  die  in  the  known  violation  of 
any  law,"  etc.,  and  it  has  been  held  that  the  violation  must 
be  such  as  is  calculated  to  endanger  life,  by  leading  to  acts 
of  violence  against,  or  to  the  bodily  or  personal  injury  or 
exposure  of,  the  assured,  and  so  to  operate  in  producing 
his  death  in  the  connection  of  cause  to  effect.  See  opin- 
ions in  Bradley  v.  Mutual  Benefit  Life  Ins.  Co.,  44  E".  Y. 

In  the  case  of  Clemens  v.  Clemens,  recently  decided  by 
this  court,  it  became  necessary  to  consider  the  same  ques- 
tion, though  under  different  circumstances,  as  to  what  vio- 
lation of  law  on  the  part  of  the  plaintiff  would  bar  his 
•action  in  a  court  of  justice  and  leave  him  remediless  in 
•the  hands  of  an  over-reaching  and  dishonest  antagonist,  and 
the  views  there  expressed  are  not  without  their  relevancy 
and  adaptation  to  the  question  as  here  presented.  In  that 


227  Sutton  v.  Town  of  Wauwatosa. 

case,  this  court  adopted  the  rule  of  law  as  settled  in  Mas- 
sachusetts, favoring  the  remedy  of  the  plaintiff,  against 
the  opposite  rule  sustained  by  the  adjudications  in  some  of 
the  other  states,  and  consistency  of  decision  seems  now 
clearly  to  require  that  our  action  should  be  reversed  with 
respect  to  the  rule  established  by  the  cases  here  referred  to. 
The  inconsistency  upon  general  principle  between  these 
decisions  of  the  same  learned  court  and  those  there  relied 
upon  and  adopted,  will,  we  think,  be  readily  perceived  and 
conceded  when  carefully  examined  and  considered  in  con- 
nection with  each  other. 

The  other  question  presented  on  the  motion  for  a  non- 
suit, and  which  the  court  below  did  not  decide,  but  which 
has  been  argued  here,  is  one  of  more  doubt  and  difficulty 
to  our  minds.  It  is,  whether  the  plaintiff  was  guilty  of 
contributory  negligence  in  permitting  so  many  cattle  to 
go  upon  the  bridge  at  one  time.  To  sustain  the  non-suit 
on  this  ground,  it  is  necessary  for  us  to  look  at  the  facts  in 
the  most  favorable  light  possible  for  the  plaintiff,  in  which 
the  jury  would  have  been  at  liberty  to  find  them,  and  then 
to  say  that  there  was  no  evidence  which  would  have  justi- 
fied a  verdict  in  his  favor,  or  such  a  clear  and  decided 
preponderance  of  evidence  against  him  as  would  have  re- 
quired the  court  to  set  aside  a  verdict  finding  to  the  con- 
trary. This  court  is  not  sufficiently  familiar  with  the 
modes  of  constructing  and  using  bridges  upon  country 
highways,  the  degree  of  strength  required  to  render  them 
ordinarily  and  reasonably  safe  and  passable,  the  weight 
which  they  are  expected  or  required  to  sustain,  the  care 
necessary  in  passing  over  them,  and  especially  with  herds 
of  cattle  or  other  animals,  to  say,  with  confidence  in  the 
correctness  of  his  own  judgment,  upon  the  evidence  before 
it,  that  the  plaintiff  was  guilty  of  such  negligence.  The 


Opinions  of  Chief  Justice  Dixon.  228 

evidence  given  throws  little  or  no  light  upon  these  points, 
necessary  to  the  formation  of  a  correct  judgment,  and  they 
are  matters  upon  the  evidence,  when  in,  more  properly  to 
be  considered  by  the  jury,  unless  the  evidence  should  be 
such,  within  the  rule  above  stated,  as  to  make  it  the  duty 
of  the  court  to  withdraw  them  from  the  consideraion  of 
the  jury,  and  itself  to  determine  the  legal  rights  of  the 
parties  upon  the  truth  of  the  facts  thus  assumed  to  be  in- 
disputably shown. 

By  the  Court.  Judgment  reversed,  an  a  venire  de  novo 
awarded. 

NOTE. 

Sutton  v.  The  Town  of  Wauwatosa,  supra,  has  been 
cited  with  approval  by  the  Supreme  Court  of  Wisconsin, 
as  follows:  The  Lawrence  University  v.  Smith,  32  Wis. 
592 ;  Alexander  v.  Town  of  Oshkosh,  33  Wis,  283 ;  Mo- 
Arthur  v.  G.  B.  &  M.  Canal  Co.,  34  Wis.  149,  150 ;  Ken- 
worthy  v.  Town  of  Irontown,  41  Wis.  651,  652;  RTeanow 
v.  Uttech,  46  Wis.  589 ;  Quaife  v.  C.  &  N.  W.  Ey.  Co.,  48 
Wis.  520 ;  Jones  v.  C.  &  K  W.  Ey.  Co.,  49  Wis.  354,  1 
Am.  &  Eng.  Ey.  Gas.  62 ;  Schomer  v.  Hecla  Fire  Ins.  Co., 
50  Wis.  579 ;  Jucker  v.  C.  &  K  W.  Ey.  Co.,  52  Wis.  152, 
2  Am.  &  Eng.  Ey.  Cas.  42 ;  Veerhusen  v.  C.  &  K".  W.  Ey. 
Co.,  53  Wis.  696 ;  Hogan  v.  C.,  M.  &  St.  Paul  E.  Co.,  5£ 
Wis.  147;  Knowlton  v.  Mil.  City  Ey.  Co.,  59  Wis.  282; 
Kelson  v.  C.,  M.  &  St.  P.  Ey.  Co.,  60  Wis.  324;  Hoppe  v. 
C.,  M.  &  St.  P.  Ey.  Co.,  61  Wis.  365 ;  Eeed  v.  City  of 
Madison,  83  Wis.  178,  17  L.  E.  A.  736;  Welch  v.  Town 
of  Geneva,  110  Wis.  389,  390 ;  Walker  v.  Village  of  On- 
tario, 111  Wis.  117 ;  Mauch  v.  Hartford,  112  Wis.  58. 

Sutton  v.  Wauwatosa,  supra,  has  been  cited  with  ap- 
proval outside  of  the  Supreme  Court  of  Wisconsin,  as  fol- 
lows: Alabama  Gr.  So.  Ey.  Co.  v.  McAlpine  &  Co.,  71 
Ala.  .550;  Schwenke  v.  Union  D.  &  E.  Co.,  12  Col.  345; 
Broschart  v.  Tuttle,  59  Conn.  14,  11  L.  E.  A.  38 ;  City  of 
Chicago  v.  Keefe,  114  111.  228,  55  Am.  Eep.  862;  L.  K 


229  Note  to  Sutton  v.  Town  of  Wauwatosa. 

A.  &  C.  Ry.  Co.  v.  Buck,  116  Ind.  571,  9  Am.  St.  Rep. 
887,  2  L.  E.  A.  524 ;  Schmidt  v.  Humphrey,  48  la.  656, 
30  Am.  Rep.  417;  Tingle  v.  C.,  B.  &  Q.  Ry.  Co.,  60  la. 
334;  Gross  v.  Miller,  94  la.  77,  26  L.  R.  A.  607;  Kansas 
City  v.  Orr,  62  Kan.  68,  50  L.  R.  A.  786 ;  111.  Cent.  R 
Co.  v.  Dick,  91  Ky.  439 ;  P.  W.  &  B.  Ry.  Co.  v.  Lehman, 
56  Md.  228,  40  Am.  Rep.  417;  Xewcomb  v.  Boston  Pro. 
Assn.,  146  Mass.  603,  4  Am.  St.  Rep.  359 ;  Reed  v.  Mo.  P. 
Ry.  Co.,  50  Mo.  App.  507 ;  Wentworth  v.  Jefferson,  60  K 
H.  158 ;  Solarz  v.  Manhattan  Ry.  Co.,  31  Abb.  K  C.  428, 
8  K  Y.  Misc.  658 ;  Platz  v.  City  of  Cohoes,  89  K  Y.  223, 
42  Am.  Rep.  289 ;  McNeil  v.  Durham  &  C.  Ry.  Co.,  135 
X.  C.  712,  67  L.  R.  A.  241 ;  Baldwin  v.  Barney,  12  R  L 
397,  34  Am.  Rep.  674;  G.  C.  &  S.  F.  R.  Co.  v.  Johnson, 
71  Tex.  621,  1  L.  R.  A.  731. 

Sutton  v.  Wauwatosa,  supra,  was  commented  on  some- 
what disapprovingly  in  Johnson  v.  Town  of  Irasburgh  (47 
Vt.  33,  19  Am.  Rep.  114).  The  facts  in  that  case  were 
that  plaintiff  drove  to  a  friend's  house  on  Sunday  on  an 
errand  which  the  court  held  to  be  a  matter  of  business,  and 
en  route  was  injured  by  means  of  a  defect  in  the  highway. 
The  court  decided  that  he  could  not  recover,  as  he  was 
traveling  on  Sunday  in  violation  of  law,  and  the  town  was 
not  bound  to  maintain  its  highway  for  use  by  the  plaintiff 
for  an  unlawful  purpose. 

In  Duran  v.  Ins.  Co.  (63  Vt.  437),  the  case  was  on  con- 
tract and  not  tort,  and  hence  is  not  directly  in  point.  The 
plaintiff  sought  to  recover  on  an  accident  policy  for  injuries 
received  while  hunting  on  Sunday  in  violation  of  law ;  one 
of  the  conditions  in  the  policy  being  that  said  policy  would 
be  void,  if  the  injury  occurred  while  plaintiff  was  engaged 
in  a  violation  of  law.  The  Sutton  case,  supra,  is  merely 
referred  to  in  this  decision  as  a  holding  by  an  able  court, 
that  the  violation  of  a  Sunday  law  is  in  the  nature  of  a 
condition  attending  the  alleged  wrongful  act  rather  than  a 
cause  producing  it. 

Hoadley  v.  The  Int.  Paper  Co.  (72  Vt.  79,  81),  the 
latest  case  on  the  subject  in  Vermont,  cites  Sutton  v.  Wau- 
watosa, supra,  with  approval,  and  is  decided  in  accord- 


Opinions  of  Chief  Justice  Dixon.  230 

ance  with  the  doctrine  enunciated  by  Chief  Justice  Dixon. 
In  this  case  the  decedent  while  at  work  on  Sunday  in  the 
defendant's  paper  mill  repairing  a  pulp  digester  received 
injuries  which  caused  his  death  within  two  or  three  days 
thereafter.  Verdict  and  judgment  for  the  plaintiff.  On 
appeal  the  court  said:  "The  court  below,  without  submit- 
ting the  question  of  proximate  cause  to  the  jury,  should 
have  held  that  it  was  no  defense  to  defendant's  negligence 
that  the  decedent  was  working  for  it  on  Sunday  when  its 
negligence  caused  his  death."  Judgment  for  plaintiff  af- 
firmed. 

Massachusetts  was  the  only  other  state  in  which  it  was 
ever  held  that  the  violation  of  a  Sunday  law  by  the  plaint- 
iff at  the  time  of  the  injury  was  such  fault  as  would  defeat 
an  action  to  recover  for  an  injury  received  through  de- 
fendant's negligence.  It  was  uniformly  held  in  numerous 
decisions  in  that  state  that  a  person  traveling  on  Sunday, 
in  violation  of  law,  could  not  recover  in  an  action  against 
a  city  or  town  for  injuries  sustained  through  a  defect  in 
the  highway.  Bosworth  v.  Swansey,  10  Met.  363 ;  Smith 
v.  B.  &  M.  Ry.  Co.,  120  Mass.  490 ;  Lyons  v.  Desotelle,  124 
Mass.  387;  Davis  v.  Somerville,  128  Mass.  594;  Butcher 
v.  Pittsburg  Ry.,  131  Mass.  156 ;  Day  v.  Highland  St.  Ry., 
135  Mass.  113 ;  Stanton  v.  Met.  Ry.,  14  Allen,  485. 

The  court  evaded  the  question  in  several  instances,  by 
holding  that  calls  made  on  Sunday  for  pleasure  and  exer- 
cise, the  distances  being  in  one  instance  one  half  mile,  and 
in  the  other  a  mile  and  an  eighth,  did  not  constitute  "trav- 
eling," within  the  meaning  of  the  Sunday  law,  hence  the 
plaintiffs  were  allowed  to  recover.  See  Hamilton  v.  Bos- 
ton, 14  Allen,  475 ;  Barker  v.  Worcester,  139  Mass.  74. 

Finally  in  1884  the  legislature  came  to  the  rescue,  and 
a  law  was  passed  (ch.  37,  sec.  1,  Laws  of  1884,  ch.  98, 
sec.  17,  Rev.  Laws  of  Mass.  1902),  reading  as  follows: 
"The  provisions  of  ch.  98  of  the  Public  Statutes  relating 
to  the  observance  of  the  Lord's  Day,  shall  not  constitute  a 
defense  to  an  action  for  a  tort  or  injury  suffered  by  a 
person  on  that  day."  See  Read  v.  B.  &  A.  Rd.  Co.,  140 
Mass.  199 ;  Jordan  v.  1ST.  Y.,  etc.,  Rd.  Co.,  165  Mass.  346. 


231  Note  to  Sutton  v.  Town  of  Wauwatosa. 

In  Watson  on  Damages  for  Personal  Injuries,  the 
learned  author  at  sec.  231  quotes  Chief  Justice  Dixon's 
reasoning  in  the  Sutton  case  against  the  Massachusetts  doc- 
trine as  it  existed  prior  to  the  statute,  characterizing  his 
opinion  in  that  case  as  most  "elaborate  and  able." 

The  opinion  is  uniformly  cited  with  approval  in  text 
and  case  books  and  in  encyclopaedses,  and  is  undoubtedly 
the  law  in  every  state  at  this  time. 

The  Sutton  case,  supra,  has  been  cited  in  notes  to  the 
following  cases,  reported  in  L.  R.  A.,  Am.  Rep.,  Am. 
Dec.,  Am.  St.  Rep.,  and  Am.  &  Eng.  Ry.  Cas. : 

Lawyers'  Reports  Annotated:  L.  1ST.  A.  &  C.  Ry.  Co.  v. 
Buck  (116  Ind.  571),  2  L.  R.  A.  522;  Erickson  v.  St.  P. 
&  D.  Ry.  Co.  (41  Minn.  500),  5  L.  R.  A.  787;  Thompson 
v.  Village  of  Quincy  (83  Mich.  173),  10  L.  R.  A.  738. 

American  Reporter:  Frost  v.  Plumb  (40  Conn.  Ill), 

16  Am.  Rep.  23;  McGrath  v.  Merwin  (112  Mass.  467), 

17  Am.  Rep.  122;  Damon  v.  Inhabitants  of  Scituate  (119 
Mass.  66),  20  Am  Rep.  317;  McCarthy  v.  Portland  (67 
Maine,  167),  24  Am.  Rep.   26;   Schmidt  v.  Humphrey 
(48  la.  656),  30  Am.  Rep.  418;  State  v.  Lorry  (7  Baxt. 
95),  32  Am.  Rep.  557. 

American  Decisions:  Woodman  v.  Hubbard  (25  !N".  H. 
67),  57  Am.  Dec.  320;  Cotton  v.  Sharpstein  (14  Wis.  26), 
80  Am.  Dec.  782;  Merrit  v.  Earle  (29  K  Y.  115),  86 
Am.  Dec.  297. 

American  State  Reports:  Whitworth  v.  Thomas  (87 
Ala.  308),  3  Am.  St.  Rep.  730;  Gilson  v.  D.  &  H.  Canal 
Co.  (65  Vt.  213),  36  Am.  St.  Rep.  819. 

American  &  English  Railway  Cases:  Johnson  v.  Mo. 
P.  Ry.  Co.  (18  Neb.  690),  23  Am.  &  Eng.  Ry.  Cas.  435, 
437. 

Sutton  v.  Wauwatosa,  supra,  is  also  reported  in  Am. 
Rep.  vol.  9,  p.  534. 


Opinions  of  Chief  Justice  Dixon.  232 


Morse  and  another  v.  The  Home  Insurance  Company 
of  New  York  City. 

June  Term,  1872. 
(30  Wis.  496.) 

In  this  case  it  appears  that  The  Home  Insurance  Com- 
pany, a  corporation  organized  under  the  laws  of  the  State 
of  New  York  and  doing  an  insurance  business,  made  appli- 
cation to  and  was  admitted  to  do  business  in  the  State  of 
Wisconsin.  The  Wisconsin  statutes  at  that  time  provided, 
in  substance,  that  foreign  insurance  companies  as  a  con- 
dition of  doing  business  in  that  State,  must,  among  other 
things,  agree  in  writing  not  to  remove  suits,  which  might 
be  brought  against  them  from  the  State  to  the  Federal 
courts. 

The  Home  Insurance  Company  having  been  sued  by 
Morse  and  another  on  a  contract  of  fire  insurance  issued 
within  the  State,  in  violation  of  its  agreement  and  con- 
trary to  the  statute,  duly  filed  its  petition  and  took  the  nec- 
essary steps  to  remove  the  action  to  the  Federal  court.  The 
State  Court  of  Wisconsin,  in  which  the  suit  was  brought, 
held  that  the  statute  in  question  and  the  agreement  made 
under  it  justified  a  denial  of  the  petition  to  remove  the 
cause  into  the  Circuit  Court  of  the  United  States,  retained 
the  case,  and  proceeded  to  trial  and  gave  judgment  for  the 
plaintiffs  on  a  verdict  found  in  their  favor. 

Upon  the  affirmance  of  such  judgment  of  the  Wisconsin 
Circuit  Court,  the  opinion  hereinafter  set  out  was  ren- 
dered by  the  Chief  Justice.  The  other  facts  necessary  to 
an  understanding  of  this  case  are  stated  in  the  opinion. 


233  Morse  v.  Home  Insurance  Co. 

The  following  are  the  propositions  of  law  decided : 

The  right  of  a  citizen  of  one  state,  when  sued  in  the 
courts  of  another  state,  to  have  the  cause  removed  to 
a  federal  court,  is  one  which  he  may  waive,  or  estop 
himself  from  setting  up,  by  a  previous  stipulation  or 
covenant  to  that  effect. 

A  corporation  created  by  one  state  has  no  power  to  do 
any  corporate  act  in  another  state,  except  by  the  ex- 
press or  implied  consent  of  the  latter,  and  upon  such 
terms  as  it  shall  prescribe. 

Section  22,  ch.  56,  Laws  of  1870,  which  requires  fire  in- 
surance companies  incorporated  by  the  laws  of  any 
other  state,  or  of  a  foreign  government,  before  trans- 
acting the  business  of  insurance  by  agents  in  this 
state,  to  appoint  an  attorney  in  this  state  upon  whom 
legal  process  may  be  served,  and  stipulate  that  it  will 
not  remove  to  the  federal  courts  any  suit  commenced 
against  it  in  a  court  of  this  state,  is  a  valid  enact- 
ment, and  the  stipulation  so  made  is  binding  upon  the 
company. 

Analagous  conditions  may  be  imposed  by  its  charter 
upon  a  corporation  created  by  this  State;  and  the 
acceptance  of  the  charter  will  be  a  waiver  of  rights 
which  the  corporation  would  possess  if  not  thus  ex- 
pressly denied. 

The  Fox  and  Wolf  rivers  in  this  State,  above  Oshkosh 
and  between  that  place  and  Winneconne,  are  held  not 
to  be  public  navigable  waters  of  the  United  States 
within  the  admiralty  jurisdiction. 

Dixon,  Chief  Justice.  This  is  an  appeal  by  the  insur- 
ance company  upon  which  but  two  questions  are  presented, 
and  after  very  full  arguments  by  counsel  and  a  careful  ex- 


Opinions  of  Chief  Justice  Dixon.  234 

animation  by  ourselves,  we  are  quite  satisfied  that  both 
were  correctly  decided  by  the  court  below. 

The  first  question  is  as  to  the  validity  of  so  much  of  the 
act  approved  March  14,  1870,  and  of  the  agreement  of  the 
defendant  company  filed  under  it  as  declares  that  "it  shall 
not  be  lawful  for  any  fire  insurance  company,  association 
or  partnership,  incorporated  by  or  organized  under  the 
laws  of  any  other  State  of  the  United  States,  or  any  foreign 
government,  for  any  of  the  purposes  specified  in  this  act, 
directly  or  indirectly,  to  take  risks,  or  transact  any  busi- 
ness of  insurance  in  this  state,  unless  *  *  *  such  com- 
pany desiring  to  transact  any  such  business  as  aforesaid, 
by  any  agent  or  agents  in  this  state,  shall  first  appoint 
an  attorney  in  this  state,  on  whom  process  of  law  can  be 
served,  containing  an  agreement  that  such  company  will 
not  remove  the  suit  for  trial  into  the  United  States  Circuit 
Court  or  Federal  Courts,  and  file  in  the  office  of  the  secre- 
tary of  state  a  written  instrument,  duly  signed  and  sealed, 
certifying  such  appointment,  which  shall  continue  until 
another  attorney  be  substituted."  Laws '1870,  ch.  56, 
sec.  22.  1  Tay.  Sts.  958,  sec.  22.  The  company  here  hav- 
ing made  and  filed  the  agreement  and  transacted  business 
in  this  state  under  it,  attempted,  when  this  action  was  com- 
menced to  repudiate  it  and  to  remove  the  suit  to  the  United 
States  circuit  court  in  violation  of  its  own  deliberate  prom- 
ise, and  one  of  the  express  conditions  upon  which  it  had 
been  permitted  to  transact  such  business.  The  language  of 
its  stipulation  was:  "and  said  company  agrees  that  suits 
commenced  in  the  state  courts  of  Wisconsin,  shall  not  be 
removed  by  the  act  of  said  company,  into  the  United  States 
circuit  or  federal  courts." 

Both  the  act  and  agreement  are  attacked  upon  constitu- 
tional grounds.  It  is  said  that  both  the  constitution  of  the 


235 


Morse  v.  Home  Insurance  Co. 


United  States  and  the  laws  of  congress  provide  for  such 
removals,  and  that  any  legislation  on  the  part  of  the  states 
calculated  to  hinder  or  prevent  them  in  cases  otherwise 
proper,  is  unconstitutional  and  void.  It  may  be  conceded 
that  any  state  legislation  intended  or  calculated  of  itself, 
or  ~by  its  own  mere  force,  to  defeat  or  prevent  the  exercise 
of  the  right  of  removal  where  it  exists,  would  be  uncon- 
stitutional and  void.  It  may  be  conceded  that  if  congress 
in  the  exercise  of  its  plenary  power  had  withdrawn  all  ju- 
risdiction from  the  state  courts  in  the  class  of  cases  to 
which  this  belongs,  that  is,  as  "between  citizens  of  differ- 
ent states,"  that  then  state  legislation  of  the  kind  here  in 
question  could  not  be  sustained.  If,  under  the  constitution 
and  laws  of  the  United  States,  exclusive  jurisdiction  of 
suits  between  citizens  of  different  states  were  given  to  the 
courts  of  the  United  States,  then  it  might  well  follow  that 
the  state  courts  could  get  no  jurisdiction  by  waiver  or  by 
express  consent,  whether  such  waiver  or  consent  was  pro- 
cured by  aid  of  state  legislation  or  not.  In  that  case  con- 
sent would  not  confer  jurisdiction.  But  the  constitution 
of  the  United  States  does  not  provide,  nor  has  the  congress 
as  yet  enacted  that  the  federal  courts  shall  have  exclusive 
jurisdiction  in  such  cases.  On  the  contrary,  the  constitu- 
tion recognizes,  and  so  do  the  laws  of  congress,  expressly, 
that  the  state  courts  may  and  shall  .continue  to  exercise 
jurisdiction  in  all  such  cases,  except  where  the  power  of 
removal  has  been  conferred  upon  the  non-resident  suitor, 
and  he  has  seen  fit  to  avail  himself  of  it  by  compliance 
with  the  regulations  of  congress,  enacted  in  that  particular. 
But  as  yet  this  is  a  mere  privilege  bestowed  on  account  of 
the  relationship  of  being  a  citizen  of  another  state,  and 
which  such  citizen  may  exercise  or  not,  at  his  mere  will 
and  pleasure,  and  the  question  here  would  seem  to  be 


Opinions  of  Chief  Justice  Dixon.  236 

whether  it  is  a  privilege  of  a  kind  capable  of  being  waived 
by  the  party  in  whose  favor  it  exists,  or  such  that  he  may 
by  stipulation  or  covenant  deliberately  and  fairly  entered 
into  beforehand,  bargain  away  or  estop  himself  from  set- 
ting up  or  taking  future  advantage  of  it. 

And  the  question  thus  presented,  differs  very  widely 
from  those  put  by  counsel^  by  way  of  attempted  illustra- 
tion of  the  supposed  unconstitutionality  of  the  act,  and  of 
the  agreement  entered  into  under  it.  The  question  differs 
very  widely  from  that  which  would  be  presented,  were  this 
the  case  of  a  natural  person,  a  citizen  of  another  state,  en- 
dowed with  the  full  rights  of  an  individual,  and  subject  to 
no  disabilities.  It  is  not  a  question  of  the  same  kind  at  all, 
in  substance  or  effect,  as  it  would  be,  if  the  act  and  agree- 
ment involved  the  violation  of  some  positive  law  of  con- 
gress, as,  a  law  relating  to  taxation  by  the  United  States, 
or  laws  regulating  trade,  commerce  and  navigation,  or  the 
carrying  business  between  the  different  states.  Instead  of 
being  an  obnoxious,  and  unconstitutional  act  and  agreement 
of  that  kind,  it  is  one  which  relates  to,  and  only  proposes 
to  deal  with  and  take  away,  by  consent  of  the  party  hav- 
ing it,  a  mere  personal  or  individual  privilege,  conferred 
by  law  of  congress,  and  which  such  party  is  and  always  has 
been  at  full  liberty  to  accept  or  reject,  as  he  may  see  fit,  or 
think  for  his  interest  to  do.  The  illustrations  of  the 
learned  counsel  fail,  therefore,  by  reason  of  the  essential 
differences  of  the  cases.  The  mistake  seems  to  be  in  sup- 
posing cases  alike,  which  are  materially  and  intrinsically 
different. 

The  question  comes  back,  therefore,  to  one  of  compe- 
tency on  the  part  of  this  company  to  waive  or  surrender  a 
right  or  privilege  which  it  had,  and  which  it  could  accept 
or  reject  as  it  chose,  and  also  to  one  of  power  on  the  part 


237  Morse  v.  Home  Insurance  Co. 

of  the  state  legislature  to  exact  such  waiver  or  surrender 
as  one  of  the  conditions  of  permitting  the  company  to  do 
business  in  this  state. 

As  to  the  first  point,  or  that  of  competency  to  waive,  we 
suppose  it  is  too  late  to  question  at  this  day,  that  a  party 
may,  under  proper  circumstances,  waive  any  right,  even  a 
constitutional  one,  in  matters  of  a  civil  nature,  and  espe- 
cially that  this  may  be  done  by  a  corporation  which  is  the 
mere  creature  of  the  legislative  power,  and  subject  to  such 
conditions  and  restrictions  as  the  legislature  deems  proper 
to  impose.  It  was  held  by  this  court  in  Burrows  v.  Bash- 
ford,  22  Wis.  103,  and  for  reasons  which  there  sufficiently 
appear  and  also  in  Darge  v.  The  Horicon  Iron  Manufac- 
turing Company,  ib.  417-421,  where  it  was  decided  that 
a  corporation  created  under  a  law  of  this  state,  could  not 
be  heard  to  object  that  a  provision  of  its  charter  was  uncon- 
stitutional or  invalid,  because  it  gave  a  beneficial  right  of 
appeal  to  the  opposite  party  in  a  suit  or  proceeding,  and  at 
the  same  time  gave  the  corporation  only  a  nominal  and  un- 
productive right  of  appealing  from  the  same  judgment  or 
decision.  It  was  held  that  having  organized  and  acted 
under  the  charter,  so  far  as  to  take  the  property  of  the 
plaintiff  in  that  suit,  the  company  was  precluded  from  then 
objecting  to  the  validity  of  its  provisions  prescribing  what 
the  remedy  against  the  company  should  be.  In  other 
words,  it  was  held  that  the  company  having  accepted  and 
acted  under  its  charter,  and  received  the  benefits  of  it,  had 
accepted  also  the  burdens  and  disabilities  which  it  imposed, 
and  waived  what  otherwise  might  have  been  a  constitu- 
tional right  or  valid  objection  to  the  provision.  See  also 
cases  there  cited :  The  People  v.  Murray,  5  Hill,  468 ;  Van 
Allen  v.  The  Assessors,  3  Wallace,  573;  and  Dunmore's 
Appeal,  52  Pa.  St.  K.  374. 


Opinions  of  Chief  Justice  Dixon.  238 

And  it  would  seem  on  authority,  that  there  are  very  few 
rights  and  privileges  of  this  nature  respecting  the  remedies 
of  parties  to  contracts  and  civil  actions,  and  to  the  time, 
place  and  mode  of  trial  and  of  entering  or  of  causing  judg- 
ment to  be  entered  against  the  party  in  default,  which  may 
not  be  the  subject  of  express  waiver.  It  was  held,  for  ex- 
ample, by  this  court  in  Ladd  v.  Hildebrant,  27  Wis.  135, 
146,  that  a  party  to  an  action  might  waive  a  future  con- 
tingent right,  such  as,  before  trial  in  ejectment,  the  right 
to  a  second  trial  given  by  the  statute,  in  case  judgment  in 
the  first  should  be  against  him.  It  was  there  said  that  a 
party  may  waive  a  future  contingent  right  as  well  as  one 
which  he  presently  has.  But  a  very  strong  case  upon  this 
point  is  that  of  Bank  of  Columbia  v.  Okely,  4  Wheat.  235, 
where  it  was  held  that  an  act  of  the  assembly  of  Maryland, 
incorporating  the  bank  of  Columbia,  and  giving  to  the  cor- 
poration a  summary  process  by  execution,  in  the  nature 
of  an  attachment,  against  its  debtors,  who  had  by  an  ex- 
press consent,  in  writing,  made  the  bonds,  .bills,  or  notes 
by  them  drawn  or  endorsed,  negotiable  at  the  bank,  was 
not  repugnant  to  the  constitution  of  the  United  States  or 
of  Maryland.  The  objection  urged  was  that  the  act  con- 
travened the  article  in  the  constitution  of  Maryland,  which 
secured  the  right  of  trial  by  jury  in  all  cases  at  common 
law,  and  also  the  seventh  amendment  to  the  constitution  of 
the  United  States,  which  secured  the  same  right  in  suits 
at  common  law,  where  tlje  value  in  controversy  exceeded 
twenty  dollars,  but  the  same  was  overruled  on  the  ground 
of  waiver,  and  because  the  defendant  by  giving  his  note 
payable  at  the  bank  had  voluntarily  submitted  to  the  spe- 
cial jurisdiction  created  by  the  act 

The  court  say :  "Was  this  act  void,  as  a  law  of  Maryland  ? 
If  it  was,  it  must  have  become  so  under  the  restrictions  of 


Morse  v.  Home  Insurance  Co. 

the  constitution  of  the  state,  or  of  the  United  States.  What 
was  the  object  of  those  restrictions?  It  could  not  have 
been  to  protect  the  citizen  from  his  own  acts,  for  it  would 
then  have  operated  as  a  restraint  upon  his  rights.  It  must 
have  been  against  the  acts  of  others.  But,  to  constitute 
particular  tribunals  for  the  adjustment  of  controversies 
among  them,  to  submit  themselves  to  the  exercise  of  sum- 
mary remedies,  or  to  temporary  privations  of  rights  of  the 
deepest  interest,  are  among  the  common  incidents  of  life. 
Such  are  submissions  to  arbitration;  such  are  stipulation 
bonds,  forthcoming  bonds  and  contracts  of  service.  And 
it  was  with  a  view  to  the  voluntary  acquiescence  of  the  in- 
dividual, nay,  the  solicited  submission  to  the  law  of  the 
contract,  that  this  remedy  was  given.  By  making  the  note 
payable  at  the  bank  of  Columbia,  the  debtor  chose  his  own 
jurisdiction ;  and  in  consideration  of  the  credit  given  him, 
he  voluntarily  relinquished  his  claims  to  the  ordinary  ad- 
ministration of  justice,  and  placed  himself  only  in  the  sit- 
uation of  an  hypothecator  of  goods,  with  power  to  sell  on 
default,  or  a  stipulator  in  admiralty,  whose  voluntary  sub- 
mission to  the  jurisdiction  of  that  court  subjects  him  to 
personal  coercion.  It  is  true,  cases  may  be  supposed  in 
which  the  policy  of  a  country  may  set  bounds  to  the  relin- 
quishment  of  private  rights.  And  this  court  would  ponder 
long  before  it  could  sustain  this  action,  if  we  could  be  per- 
suaded that  the  act  in  question  produced  a  total  prostration 
of  the  trial  by  jury,  or  even  involved  the  defendant  in  cir- 
cumstances which  rendered  that  right  unavailing  for  his 
protection."  See  also  Arndt  v.  Insurance  Co.,  22  Wis. 
516. 

"We  are  fully  persuaded,  therefore,  that  the  right  to  re- 
move this  cause  to  the  federal  court  for  trial,  was  one  which 
the  defendant  might  waive  and  relinquish.  We  can  per- 


Opinions  of  Chief  Justice  Dixon.  240 

ceive  nothing  in  the  policy  of  the  law,  either  state  or  fed- 
eral, which  should  forbid  or  prevent  it.  As  already  ob- 
served, it  was  a  mere  individual  or  private  right,  given 
for  the  benefit  of  the  defendant,  and  to  be  exercised  or  not 
at  its  option,  and  whether  the  cause  remained  in  the  state 
court  by  stipulation,  or  went  to  the  federal  court  without, 
or  because  no  stipulation  had  been  made,  was  not  a  matter 
which  in  any  manner  infringed  the  policy  of  the  federal 
government,  or  concerned  or  involved  the  dignity  or  inde- 
pendence of  its  judiciary.  It  was  a  matter  which  con- 
cerned the  particular  rights  and  interests  of  the  parties  to 
the  action  and  no  one  else. 

And  as  to  the  point  of  the  power  of  the  state  legislature 
to  pass  such  an  act,  the  supreme  court  seems  also  to  have 
very  clearly  and  definitely  settled  that.  In  Bank  of  Au- 
gusta v.  Earle,  13  Peters  R.  519,  it  was  decided  that  a  cor- 
poration created  by  one  state  had  no  power  to  do  any  cor- 
porate act  in  another  state,  unless  by  the  express  or  implied 
consent  of  the  latter.  And  in  Paul  v.  Commonwealth  of 
Virginia,,  8  Wai.  168,  the  court  use  this  language :  "Having 
no  absolute  right  of  recognition  in  other  states,  but  depend- 
ing for  such  recognition  and  the  enforcement  of  its  con- 
tracts upon  their  assent,  it  follows,  as  a  matter  of  course, 
that  such  assent  may  be  granted  upon  such  terms  and  con- 
ditions as  those  states  may  think  proper  to  impose.  They 
may  exclude  the  foreign  corporation  entirely;  they  may 
restrict  its  business  to  particular  localities,  or  they  may 
exact  such  security  for  the  performance  of  its  contracts 
with  their  citizens  as  in  their  judgment  will  best  promote 
the  public  interest  The  whole  matter  rests  in  their  dis- 
cretion." 

This  seems  decisive  of  the  point  and  to  preclude  the 
necessity  or  propriety  of  further  discussion,  especially 


241  Morse  v.  Home  Insurance  Co. 

when  it  is  considered  that  the  act  does  not  purport  to  oper- 
ate upon,  or  bind  the  foreign  insurance  company  on  the 
subject  of  removal,  except  by  its  assent  freely  and  volun- 
tarily given.  As  observed  in  Bank  of  Columbia  v.  Okely, 
it  was  with  a  view  to  the  voluntary  acquiescence  of  the  for- 
eign insurance  company,  nay,  its  solicited  submission  to 
the  law  of  the  contract,  that  this  exclusive  remedy  in  the 
state  courts  was  given.  By  making  and  filing  the  agree- 
ment in  the  office  of  the  secretary  of  state,  the  company 
chose  its  own  .jurisdiction,  and,  in  consideration  of  the 
rights  and  privileges  extended  to  it,  of  transacting  business 
within  the  state,  voluntarily  relinquished  the  power  and 
privilege  of  removal  to  the  federal  courts.  As  observed  by 
the  supreme  court  of  Michigan  in  The  Glen  Falls  Ins.  Co. 
v.  The  Judge  of  the  Jackson  Circuit,  21  Mich.  580,  a  case 
fully  in  point  upon  the  question  here  under  consideration, 
the  powers  thus  exercised  by  foreign  insurance  companies 
under  our  laws  are  the  same  as  if  they  were  incorporated  by 
our  laws,  and  they  become,  pro  tanto,  Wisconsin  and  not 
foreign  corporations,  for  all  practical  purposes  in  this  state. 
If,  as  decided  in  Darge  v.  The  Horicon  Iron  Manufactur- 
ing Company,  supra,  the  legislature  may  impose  as  a  condi- 
tion upon  a  corporation  of  its  own  creation,  that  it  shall 
not  have  the  right  of  appeal  from  an  assessment  by  com- 
missioners, or  a  judgment  against  itself,  or  the  right  of 
trial  by  jury,  and  such  corporation  cannot  be  heard  to  com- 
plain, or  if  as  decided  in  Van  Slyke  v.  The  State,  23  Wis. 
655,  and  in  Bagnall  v.  The  State,  25  Wis.  112,  both  since 
affirmed  on  error  in  the  supreme  court  of  the  United  States,, 
taxes  may  be  annexed  to  the  franchise  as  a  royalty  for  the 
grant,  or  consideration  for  the  corporate  powers  given, 
where  otherwise  no  taxes  could  be  levied  or  collected,  it 
would  be  very  strange,  we  say,  if  similar  conditions  or  re- 
16 


Opinions  of  Chief  Justice  Dixon.  242 

strictions  could  not  be  imposed  upon  a  foreign  corporation 
in  consideration  of  the  license  or  permission  granted  to  it 
to  transact  business  within  the  state.  Considering  that  the 
foreign  corporation  has  no  power  to  do  any  corporate  act 
in  this  state  except  by  the  assent,  express  or  implied,  of  the 
legislature,  and  that  it  derives  its  whole  power  and  author- 
ity to  do  so  from  the  latter,  it  necessarily  follows  that  the 
legislature  has  the  same  power  and  all  the  power  and  con- 
trol over  it  that  it  has  over  a  corporation  of  its  own  creation. 
The  other  question  presented  on  this  appeal,  is  whether 
the  Fox  and  Wolf  rivers  in  this  state,  above  Oshkosh  and 
between  Oshkosh  and  Winneconne,  are  public  navigable 
waters  of  the  United  States,  within  the  admiralty  jurisdic- 
tion. The  policy  of  insurance  upon  which  this  suit  was 
brought,  was  against  loss  by  fire  of  the  steamboat  "Dia- 
mond," owned  by  the  plaintiffs  and  used  in  navigating 
those  rivers  between  the  places  named,  and  among  other 
clauses  exempting  the  company  from  liability,  the  policy 
contained  the  following:  "Nor  for  any  loss  or  damage  by 
fire  caused  by  means  of  an  invasion,  insurrection,  riot,  civil 
commotion,  nor  in  consequence  of  any  neglect  or  deviation 
from  the  laws  or  regulations  of  police,  where  such  exist." 
The  complaint  contained  the  usual  averment  negativing  the 
loss  from  such  causes  and  the  answer  denied  that  part  of 
the  allegation  which  was  that  the  loss  did  occur  "in  conse- 
quence of  any  neglect  or  deviation  from  the  laws  or  regula- 
tions of  police  existing  at  the  time  of  such  fire."  On  the 
trial,  the  defendant  interrogated  witnesses  and  offered  to 
prove  that  the  steamboat  was  not  enrolled  and  licensed  for 
the  coasting  trade  as  required  by  the  laws  of  congress  for 
vessels  engaged  in  navigating  the  public  navigable  waters 
of  the  United  States,  and  that  she  had  not  on  board  those 
appliances,  means  and  facilities  for  extinguishing  fire  pre- 


Morse  v.  Home  Insurance  Co. 

scribed  for  such  vessels  by  the  act  of  congress,  approved 
February  28,  1871,  and  by  the  printed  rules  and  regula- 
tions adopted  and  issued  by  the  board  of  supervising  in- 
spectors of  steam  vessels,  under  said  act  The  evidence  was 
excluded,  and  the  question  thereupon  arising,  is  whether 
the  vessel  was  within  the  operation  of  those  laws  which  de- 
pends upon  the  navigable  character  of  the  streams  upon 
which  she  was  employed  at  and  before  the  time  of  loss.  The 
acts  of  congress  apply  only  to  vessels  navigating  the  public 
navigable  waters  of  the  United  States,  to  which  admiralty 
jurisdiction  extends,  and  this  question,  much  more  than 
that  first  above  considered,  is  one  of  peculiarly  federal  ju- 
risdiction and  cognizance. 

We  have  been  favored  with  a  newspaper  copy  of  an  able 
and  elaborate  opinion  of  the  circuit  court  of  the  United 
States  for  the  eastern  district  of  this  state,  delivered  by 
Miller,  D.  J.,  in  the  case  of  The  United  States  v.  The 
Steamer  Montello,  which  fully  examines  and  discusses  the 
navigable  character  of  these  rivers  at  and  between  the 
places  above  referred  to,  and  from  a  point  far  below  Osh- 
kosh,  on  the  Fox  river.  It  was  there  held  that  the  Fox 
river,  and  of  course  its  tributaries  above  Depere  Rapids,  is 
not  a  public  navigable  water  of  the  United  States,  within 
the  admiralty  jurisdiction.  We  are  not  aware  that  the 
precise  question  has  been  determined  by  the  supreme  court 
though  the  case  in  the  circuit  court  was  the  same  as  that  in 
the  supreme,  The  Montello,  11  Wai.  411,  where  that  court 
declined  to  consider  it  for  want  of  sufficient  allegations  and 
evidence  showing  the  precise  character  of  the  Fox  River  as 
a  navigable  stream,  and  remanded  the  cause  to  the  court  be- 
low for  further  proceedings,  in  order  that  those  defects 
might  be  obviated.  The  cases  of  Veazie  v.  Wyman,  14 
How.  568,  and  The  Daniel  Ball,  10  Wai.  557,  seem  to  be 


Opinions  of  Chief  Justice  Dixon.  244 

decisive  of  the  principle  of  law  involved,  as  well  as  the 
former  to  touch  very  closely  upon  the  facts  here  presented. 
But  it  does  not  become  this  court  to  scrutinize  or  disregard 
the  decision  of  the  learned  circuit  court,  upon  a  question  of 
this  nature.  We  cannot,  if  we  would,  force  upon  that 
court  a  jurisdiction  which  it  declines  to  take  under  the 
laws  of  congress,  nor  give  to  those  laws  an  interpretation 
different  from  that  which  they  receive  in  the  judicial  tribu- 
nals, whose  duty  and  sole  prerogative  it  is  to  expound  and 
apply  them.  When  the  decision  of  the  circuit  court  is  re- 
versed, if  by  chance  it  shall  be  on  a  second  appeal,  which 
we  understand  is  pending,  then  of  course  this  court,  in 
common  with  that,  will  stand  corrected  upon  the  question, 
but  until  that  time,  if  it  shall  ever  come,  we  are  quite  con- 
tent to  abide  the  decision  of  the  circuit  court 

In  conclusion,  we  have  to  express  the  satisfaction  that 
if  we  are  wrong  upon  either  or  both  the  questions  which 
have  been  considered,  the  defendant  in  the  action  has  its 
remedy  to  correct  us  by  writ  of  error  issuing  from  the 
supreme  court. 

By  the  court. — Judgment  affirmed. 

NOTE. 

The  judgment  of  the  Wisconsin  Supreme  Court  in  the 
foregoing  case  was  taken  on  a  writ  of  error  to  the  Supreme 
Court  of  the  United  States  where,  by  a  divided  court,  the 
judgment  was  reversed.  (Insurance  Company  v.  Morse, 
20  Wall.  445).  In  delivering  the  opinion  of  the  United 
States  Supreme  Court,  Mr.  Justice  Hunt  held,  among 
other  things,  that  the  statute  in  question  was  repugnant  to 
the  Constitution  of  the  United  States  and  therefore  void, 
and  that  the  agreement  the  insurance  company  made,  in 
compliance  with  the  terms  of  the  statute,  was  also  void. 

There  was  a  vigorous  dissenting  opinion  by  Chief  Jus- 
tice Waite,  in  which  Mr.  Justice  Davis  concurred. 


245  Note  to  Morse  v.  Home  Insurance  Co. 

\. 

In  the  course  of  his  dissenting  opinion,  Chief  Justice 
Waite  said : 

"The  State  of  Wisconsin  has  made  it  a  condition  of  ad- 
mission that  the  company  shall  submit  to  be  sued  in  the 
courts  she  has  provided  for  the  settlement  of  the  rights  of 
her  own  citizens.  That  is  no  more  than  saying  that  the 
foreign  company  must,  for  the  purposes  of  all  litigation 
growing  out  of  the  business  transacted  there,  renounce  its 
foreign  citizenship  and  become  pro  tanto  a  citizen  of  that 
State.  There  is  no  hardship  in  this,  for  it  imposes  no 
greater  burden  than  rests  upon  home  companies  and  home 
insurers." 

This  subject  is  again  referred  to  in  The  State  v.  Doyle, 
40  Wis.  175,  included  in  this  compilation,  where  the  rule 
is  finally  settled  and  concurred  in  by  the  Supreme  Court 
of  the  United  States  in  such  manner  as  to  give  effect  to 
the  State  statute. 

Morse  v.  The  Home  Insurance  Company,  supra,  has 
been  cited,  with  approval,  in  Wisconsin,  as  follows : 

Smith  v.  Lockwood,  34  Wis.  82;  State  v.  Doyle,  40  Wis. 
189,  190,  192,  194,  195,  196,  198 ;  State  ex  rel.  Atty.  Gen. 
v.  Milwaukee,  etc.,  Ry.  45  Wis.  596;  Wadleigh  v.  Stand- 
ard Life  &  Accident  Ins.  Co.,  ?6  Wis.  441 ;  Lewis  v.  Am. 
Savings  &  Loan  Ass'n,  98  Wis.  221,  39  L.  R.  A.  566. 

It  has  been  cited  disapprovingly  in  Rese  v.  Newport 
News  &  Miss.  Valley  Co.,  32  W.  Va.  164,  3  L.  R.  A.  574. 


LIFE  OF 

CHIEF  JUSTICE  RYAN. 


SKETCH  OF  LIFE  AND  SERVICES  OF  CHIEF 
JUSTICE  RYAN  AS  CONTAINED  IN  THE 
ADDRESS  OF  THE  HON.  WM.  F.  VILAS  TO 
THE  WISCONSIN  SUPREME  COURT,  UPON 
THE  DEATH  OF  THE  CHIEF  JUSTICE. 

Edward  George  Ryan,  having  been  in  commission  as  a 
member  and  chief  justice  of  the  Wisconsin  supreme  court 
since  the  17th  day  of  June,  1874,  died  on  the  19th  day  of 
October,  1880.  On  the  9th  day  of  November  following, 
the  court  met,  pursuant  to  a  previous  adjournment,  for  the 
purpose  of  taking  proper  action  and  making  some  suitable 
record  touching  the  decease  of  the  chief  justice. 

Wm.  F.  Vilas,  Esq.,  of  the  Dane  county  bar,  thus  ad- 
dressed the  court : 

May  it  please  Your  Honors: — The  usual  assemblage 
of  so  many  of  the  bar  of  the  state,  the  sad  sense  of  bereave- 
ment and  sorrow  which  sits  upon  the  visages  of  those  here 
present,  the  funeral  decorations  of  this  court  room,  that 
empty  chair,  so  eloquent,  all  presage  the  melancholy  an- 
nouncement which  I  am  deputed  by  my  brethren  of  the 
state  bar,  in  accordance  with  the  solemn  usages  of  the  pro- 
fession, to  formally  make  to  the  court. 

Chief  Justice  Ryan  is  no  more ! 

That  profound  and  abundant  wealth  of  learning,  that 


Life  of  Chief  Justice  Ryan.  248 

eloquent  tongue,  that  massive  brain,  -which,  like  an  exhaus- 
less  mine,  yielded  richer  stores  the  deeper  it  was  tried, 
while  its  every  product  sparkled  with  the  gleam  of  priceless 
value,  are  gone  from  men,  lost  to  us  and  to  the  state  f  ore- 
ever! 

A  pioneer  of  civilization  to  the  bar  of  the  west;  an  ad- 
vocate fit  to  cope  with  any  of  historic  renown;  a  lawyer 
and  judge  of  comprehensive  and  accurate  learning,  pene- 
trating acumen  and  wise  judgment,  the  head  of  the  bar 
and  the  chief  justice  of  the  state:  profession  and  people 
may  well  sit  down  in  sackcloth  and  ashes,  lamenting  our 
irreparable  loss.  "He  was  a  man,  take  him  for  all  in  all, 
we  shall  not  look  upon  his  like  again!" 

The  duty  of  this  solemn  hour  I  cannot  hope  to  discharge. 
The  day  for  preparation  afforded  me  has  been  half  de- 
stroyed by  illness.  But  no  time  would  be  enough  for  me 
to  do  the  great  theme  justice.  He  was,  in  every  aspect  in 
which  his  character  and  abilities  are  regarded,  an  extraordi- 
nary man.  Every  faculty  he  exerted,  every  accomplish- 
ment he  assumed  to  possess,  every  passion  which  moved 
him,  was  great,  intensely  great.  He  was  a  giant  among  men, 
in  soul,  intellect  and  attributes. 

It  would  require  his  own  power  and  discrimination, 
his  own  perfection  of  speech,  truly  to  represent  him.  In 
the  hands  of  such  an  artist  in  language,  the  portrait  of 
his  mind  and  character  would  be  as  striking  and  absorbing 
in  interest  a's  any  ever  drawn  for  the  gaze  and  wonder  of 
mankind.  But  who  now  shall  paint  it  ?  I  know  none  who 
could  but  him,  and,  in  his  death,  the  subject,  the  artist  and 
the  portrait,  are  lost  together! 

I  shall  attempt  but  a  rapid  statement  of  his  life,  and  to 
point  out  a  few  salient  features  of  his  character  and  powers. 

On  the  13th  of  November,  1810,  at  New  Castle  House, 


249  Life  of  Chief  Justice  Ryan. 

in  the  county  of  Heath,  Ireland,  Edward  G.  Ryan  was 
born.  His  parents  were  possessors  of  fortune,  but,  a  sec- 
ond son,  he  took  no  share,  save  what  was  bestowed  on  his 
education.  He  completed  in  1827  the  course  of  instruc- 
tion at  Clougone's  Wood  Cottage,  and  entered  upon  the 
study  of  the  law.  He  had  but  partly  finished  that  course 
when,  in  1830,  he  migrated  to  ISTew  York.  There,  some- 
times teaching  in  private  schools,  sometimes  at  work  in  the 
office,  to  gain  support,  he  pursued  his  legal  studies  until 
1S36.  In  that  year  he  was  called  to  the  bar  and  removed 
to  Chicago,  then  but  a  village  in  the  remote  west.  Here  he 
practiced  for  six  years,  mingling  with  professional  duties 
the  work  of  editing  a  newspaper.  In  1840  and  1841  he 
was  prosecuting  attorney  of  the  county.  In  1842  he 
changed  his  residence  to  Racine ;  and  in  1846  represented 
that  county  in  the  first  constitutional  convention  of  Wiscon- 
sin. In  1848  he  removed  his  residence  to  Milwaukee, 
where  his  bones  now  repose.  There  he  practiced  his  pro- 
fession until  called  in  June,  1874,  to  this  bench,  holding 
in  the  meantime,  for  three  years,  the  office  of  city  attorney. 
Prom  the  time  he  took  his  seat  here,  he  continued  in  faith- 
ful labor,  often  interrupted  by  failing  health,  but  always 
persistently  resumed,  until  the  13th  day  of  October  last, 
when,  broken  and  exhausted  by  his  patient  toil,  he  de- 
scended from  his  seat  to  his  last  bed,  where  on  the  morning 
of  the  19th  of  October,  he  passed  away.  Laid  to  his  final 
rest  by  his  brethren  of  the  bar  and  bench,  his  remains  re- 
pose in  Forest  Home  Cemetery,  near  the  city  of  his  un- 
changing love. 

Heaven  give  him  rest ! 

It  is  a  fair  question  whether  his  wondrous  powers  as  a 
writer,  a  speaker  and  a  lawyer  were  due  in  greater  degree 
to  the  strength  of  his  natural  parts  or  the  perfection  of  his 


Life  of  Chief  Justice  Ryan.  250 

education.  Perhaps  generally  it  would  be  answered,  to  the 
former.  But  certain  it  is,  no  one  was  ever  more  finished 
by  education.  Every  spoken  and  every  written  perform- 
ance of  his  life  bears  the  impress  of  his  learning,  shines 
conspicuously  with  the  lustre  of  his  scholarship.  His  train- 
ing was  chiefly  in  law  and  in  language  'r  in  both  remarkable 
for  accuracy  and  finish.  And  it  is  especially  noteworthy, 
that  he  was,  in  his  eminence  in  both,  self-trained.  He  fin- 
ished his  course  in  school  at  seventeen ;  he  was  but  twenty 
when  he  quit  his  pupilage  in  law  in  his  native  country  for 
the  new  world.  From  that  time  forward  his  instruction 
was  administered  to  him  by  himself,  from  books  and  obser- 
vation of  men.  His  history,  as  we  see  it,  discloses  no 
marked  precocity.  For  six  years  after  his  coming  to  this 
country,  he  supported  himself  by  teaching  and  clerical 
labor,  while  he  prosecuted  his  preparations  for  the  profes- 
sion. He  was  admitted  to  the  bar  at  twenty-six,  but  does 
not  appear  to  have  attracted  especial  attention  to  his  supe- 
rior powers  until  past  thirty.  He  was  in  his  thirty-sixth 
year  when,  in  the  first  constitutional  convention  of  the  ter- 
ritory, he  acquired  that  acknowledged  pre-eminence  which 
he  ever  after  maintained. 

To  me,  his  natural  parts  appear  most  splendid  and  valu- 
able for  the  manner  in  which  they  assimilated  and  profited 
by  knowledge  and  observation.  Every  book  he  read  and 
every  hour  he  passed  of  life,  made  addition  to  his  powers. 
He  did  not  merely  read  and  see  to  add  to  his  store  of  learn- 
ing; what  he  gained  was  not  so  much  increase  of  posses- 
sions, as  increase  of  power,  of  the  mind.  He  read  much, 
but  never  inactively.  ~No  book  held  him  in  passive  submis- 
sion; he  mastered  it  easily  with  an  acute  and  analytical 
grasp.  His  memory  was  retentive  and  exact ;  yet  he  never 
seemed  to  speak  so  much  from  remembrance  as  from  him- 


251  Life  of  Chief  Justice  Ryan. 

self.  This  was  no  less  true  of  his  discourse  upon  legal  than 
upon  literary  topics.  His  understanding  was  so  informed 
by  his  methods  of  study,  that  what  it  gave  forth  was  his 
own ;  if  in  substance  the  learning  of  the  books,  in  form  and 
manner  so  marked  by  his  genius  as  to  be  apparently  his 
own. 

And  so  vigorous  was  his  grasp,  so  clear  his  conception, 
so  finished  his  style,  that  it  is  rare  to  find  instances  where 
he  has  added  to  the  vigor  and  beauty  of  his  expression  by 
any  quotation  from  others,  although  his  extensive  reading 
supplied  him  readily. 

But  he  was  not  only  rich  in  the  love  of  books,  he  was 
an  accurate  observer  of  men.  It  has  never  been  my  for- 
tune to  meet  with  any  who  was  his  equal  in  ability  to  ana- 
lyze character.  He  read  the  motives  of  action,  the  various 
faculties  and  changing  characteristics  of  men,  with  intui- 
tive ease  and  nice  justice.  This  gave  peculiar  force  to  his 
speech  when  inveighing  against  the  conduct  and  motives 
of  those  he  attacked;  a  feature  of  his  powers  which  made 
him  not  less  terrible  to  his  enemies,  than  the  wonder  of  his 
hearers,  when  the  occasion  demanded  or  allowed  the  exhibi- 
tion. 

His  course  of  self -education  was  not  limited,  as  so  com- 
monly the  error  is  made,  to  mere  processes  of  study.  He 
refined  and  corrected  his  ideas  by  diligent  writing,  and  en- 
larged their  abundance  by  frequent  conversation.  They 
who  read  with  delight  the  smooth  and  delicious  flow  of  his 
composition,  who  ride  at  ease  of  understanding  upon  the 
perspicuous  current  of  his  expressed  thought,  clearly  in- 
formed, without  effort  of  their  own  save  attention,  upon 
abstruse  and  difficult  subjects  of  distressful  doubt,  are  little 
fitted  to  realize  the  freight  of  labor  which  every  word  car- 
ried from  his  brain.  Yet  they  who  know  his  habit  of 


Life  of  Chief  Justice  Ryan.  252 

writing  can  testify  to  the  painstaking  toil  with  which  he 
criticized  and  purified  every  product  of  his  pen.  He 
could,  if  he  would,  compose  with  a  rapidity  unsurpassed 
by  any ;  and  the  hasty  labor  of  his  desk  he  could  well  trust 
in  competition  with  the  fruit  of  pains  in  others.  But  he 
was  too  sincere  and  ardent  a  servant  and  lover  of  the  Eng- 
lish language,  to  imprint  her  words  with  haste,  or  indolent 
inattention,  on  a  page  where  they  might  stand  to  her  and 
his  reproach.  To  him  the  legal  rule  of  interpretation  was 
a  fact :  "Every  word  has  his  meaning."  He  vigorously  con- 
demned the  debauchery  of  language  which  the  rapid  penny- 
a-liners  of  the  newspapers  have  inflicted  on  our  native 
tongue,  and  the  speech  of  some,  even,  of  our  scholars. 

So,  in  all  his  labor  of  writing,  dictionaries  were  his  com- 
panions and  his  friends.  He  trusted  to  no  one  of  them,  but, 
surrounded  by  many,  he  gathered  from  the  best  linguists 
the  perfect  hue  of  intelligence  and  beauty  that  belonged  to 
every  word  he  used,  and  set  it  then  in  happy  harmony  with 
its  fellows  in  the  finished  picture  of  thought  which  his 
every  period  became.  Such  discipline  had  its  reward. 
His  style  is  his  own,  strong,  clear  and  beautiful ;  not  wholly 
without  fault,  but  as  worthy  of  study  as  Addison's;  not 
always,  in  his  opinions,  perfectly  judicial,  but  turning 
from  that  path  only  to  bring  in  gems  of  beauty  by  the 
way.  To  be  able  to  write  as  Edward. G.  Ryan  has  written, 
is  a  crown  of  glory  in  letters,  a  sufficient  title  to  literary 
renown. 

He  cultivated  conversation,  and,  as  I  have  thought,  not 
only  for  its  pleasures,  but  for  its  benefits  to  him.  Certain 
it  is,  he  shone  in  social  discourse  with  a  brilliancy  not 
often  equalled.  In  happy  hours,  when  in  health  and  spir- 
its, who  more  delightful  than  he?  His  rapid  and  easy 


Life  of  Chief  Justice  Ryan. 

speech  was  wise  or  witty  as  the  time  and  subject  suited, 
but  always  sweet  in  the  simplicity  and  purity  of  the  lan- 
guage he  employed.  He  was  ever  conspicuous  for  ele- 
gant diction  in  ordinary  speech ;  nor  did  the  tumult  of  emo- 
tion or  passion  which  sometimes  possessed  him,  mar  his  ac- 
complishment, or  lead  him  to  vulgarity.  It  rather  seemed 
to  heighten  and  intensify  his  powers,  and  clothe  his  expres- 
sions with  a  richer  .color. 

Thus  the  self-imposed  habits  and  discipline  of  his  entire 
life  finished  and  perfected  all  the  powers  of  the  man.  He 
met  all  the  points  of  Bacon's  aphorism :  reading  made  him 
a  full  man ;  conference  a  ready  man ;  and  writing  an  exact 
man. 

Viewing  his  finished  character  and  faculties  as  trained 
and  accomplished  by  his  course  of  education,  and  discard- 
ing the  faults  of  temperament  and  want  of  self-control 
which  blighted  his  life,  casting  up  the  account  on  his  credit 
side  only,  how  splendid  and  magnificent  does  he  appear,  the 
ideal  and  mirror  of  professional  power  and  glory. 

His  learning  of  the  law  was  thorough  and  profound.  To 
him  the  science  of  jurisprudence  was  an  open  book ;  every 
page  familiar  to  his  eye.  He  was  trained  in  its  technical 
learning,  and  versed  in  the  long  line  of  precedents  and  ju- 
dicial opinions  which  support  and  explain  its  nice  distinc- 
tions and  sometimes  arbitrary  doctrines.  But  he  was  far 
beyond  that  plane,  the  level  only  of  the  complete  case  law- 
yer. He  knew  the  law  far  more  profoundly.  He  had 
traversed  the  great  superstructure  with  patient  examination 
from  its  deepest  foundations  to  the  last  pinnacle  on  the 
turret.  He  saw  it  not  merely  as  a  builded  thing,  acknowl- 
edging its  parts  and  relations  because  he  found  them  so. 
He  knew  the  principles  on  which  its  foundations  rest,  which 


Life  of  Chief  Justice  Ryan.  254 

support  its  noble  walls,  and  partition  its  manifold  depart- 
ments, which  inspire  its  pillars  and  its  arches,  which  gild 
its  towers  with  light,  and  fill  its  secret  recesses  with  the 
blessing  of  justice  for  men. 

He  knew  it  as  an  architect  who  might  have  builded  it, 
and  who  could  finish,  in  harmony  with  the  whole,  the  parts 
on  which  his  duty  set  him  to  work. 

And  not  alone  the  common  law — the  law  of  nature  as 
applied  to  the  relations  of  men  among  themselves ;  but  his 
perception  of  the  complex  and  delicate  relations  of  the  dif- 
ferent portions  and  civil  divisions  of  the  union,  and  of  the 
various  duties  and  powers  of  its  numerous  officers  and 
tribunals,  federal  and  state,  was  singularly  acute  and 
comprehensive.  Though  a  native  of  another  land,  he  had 
from  boyhood  profoundly  contemplated  the  wisdom  of  the 
fathers  of  this  country  of  his  adoption ;  and  he  was  fit  and 
ready  when  the  hour  came,  to  give  unanswerable  expres- 
sion to  that  discriminating  judgment  of  this  court,  in  The 
State  v.  Doyle,  which  compelled  the  federal  supreme  court 
to  recede  from  its  former  declaration  that  a  statute  of  this 
state  was  void  under  the  federal  constitution,  and  to  suffer 
its  enforcement  according  to  the  mandate  of  this  tribunal. 
In  that  result  this  bench  and  its  bar,  as  well  a's  the  rights 
of  the  people,  gained  signal  illustration. 

Founded  on  such  learning,  our  departed  leader  could 
not  but  be  a  great  lawyer.  But  his  professional  powers 
were  not  only  strong;  they  shone  with  splendor.  He  was 
a  great  advocate  and  a  great  orator.  In  many  a  cause  in 
the  forum,  upon  many  a  platform  before  the  people,  he 
has  exhibited  the  eloquence  and  action  which,  with  their 
opportunities,  would  have  ranked  him  among  the  great 
names  of  the  world.  And  though  the  memory  of  the 
advocate  is  local  and  generally  fades  with  its  generation, 


255  Life  of  Chief  Justice  Ryan. 

he  has  left  in  bequest  to  his  professional  brethren  some 
such  examples  of  forensic  eloquence  as  they  will  not  "will- 
ingly let  die." 

But  he  will  be  longest  remembered  and  honored  for  his 
work  as  the  chief  justice  of  this  court. 

He  came  to  this  great  place,  as  every  one  should  come 
who  is  worthy  to  occupy  it.  He  came  in  the  ripeness  of 
years  and  experience,  after  a  long  life  of  labor  at  the  bar. 
He  came  laden  with  profound  knowledge  of  the  science 
he  was  to  administer.  He  came  not  from  some  obscure 
corner,  to  sit  in  judgment  on  arguments  greater  than  his 
understanding ;  he  was  pushed  by  no  skillful  intrigue  into 
a  shameful  reward  for  mere  party  service ;  but,  sought  and 
taken  from  the  topmost  place  of  professional  leadership, 
which,  by  merit,  he  had  worthily  won,  he  came  fit  to  gov- 
ern and  control  where  for  so  long  he  had  confessedly  led. 

He  came  to  the  judgment  seat  with  an  honorable  ambi- 
tion, as  to  the  crowning  glory  of  a  devoted  professional  life ; 
but  he  came  reverently,  with  an  exalted  sense  of  the  respon- 
sibilities he  assumed,  and  a  noble  devotion  of  all  his  facul- 
ties and  strength  to  the  performance  of  its  duties.  He  came 
to  rest  on  no  pillow  of  repose,  but  to  toil  and  build,  that 
he  might  still  higher  elevate  the  court  and  the  law,  and 
exalt  justice  on  earth. 

And  so  he  bent  to  his  task  with  all  the  conscientious  in- 
tensity of  his  nature.  There  fell  to  his  lot  to  decide  and 
elucidate  as  important  and  interesting  questions  as  any 
which  have  come  from  this  bench  since  its  institution. 
I  need  not  say  in  this  presence  with  what  satisfaction  he  ex- 
pounded the  views  of  the  court  His  opinions  were  not 
only  profound,  but  profoundly  beautiful  in  every  circum- 
stance which  excites  the  admiration  of  the  lawyer.  It  is 
matter  of  no  wonder  that  a  great  university  of  the  land 


Life  of  Chief  Justice  Ryan.  256 

has  chosen  them  for  commendation  to  students  of  law  as 
models  of  the  purity,  beauty  and  strength  of  the  English 
tongue.  They  will  carry  his  name  with  growing  honor  to 
generations  of  students  and  lawyers  yet  unborn. 

Few,  indeed,  are  the  law  books,  where  so  much  of  excel- 
lence in  literature  and  law  is  combined  to  the  advantage  of 
both ;  where  the  lamp  of  literature  so  illuminates  the  dark 
obscurities  of  the  law,  without  a  ray  of  meretricious  light ; 
where  the  strength  of  jurisprudence  so  informs  words  of 
beautiful  harmony  with  a  solid  majesty  like  Grecian  archi- 
tecture. 

We  can  but  remember,  too,  that  much  of  this  crowning 
labor  was  done  when  his  old  frame  was  broken  by  the 
weight  of  years  and  infirmities,  and  torn  by  convulsions  of 
passion;  when  his  hours  of  rest  were  disconsolate  and 
lonely,  or  racked  with  pain. 

For  with  that  justice  he  would  have  unsparingly  ad- 
ministered, we  cannot  omit  from  view  his  faults  and  im- 
perfections. They,  too,  were  great.  Principal  of  all  was 
his  sudden  and  violent  temper.  The  electric  current  re- 
sponds no  quicker  to  a  disturbing  influence,  than  did  his 
wrath  to  an  offensive  touch ;  and  its  explosions  are  not  mor.e 
furious  than  the  outbursts  of  his  anger.  His  passions 
burned,  when  lighted,  like  a  flaming  volcano,  shaking  him 
with  fearful  violence,  and  belching  the  hot  lava  of  his 
wrath  on  everything  and  everybody  which  stood  in  opposi- 
tion. He  was  a  painful  proof  of  the  value  of  self-control. 
For  the  chiefest  misfortune  of  his  life  was  his  weakness  in 
presence  of  his  own  passion.  That  subdued  and  governed 
him,  turning  his  power  to  his  own  destruction.  It  made 
him  terrible  to  his  friends  as  well  as  to  his  enemies ;  tyran- 
nical, perhaps  sometimes  cruel,  where  he  should  have 
been  gentle  and  loving;  suspicious  and  jealous,  where  he 


257  Life  of  Chief  Justice  Ryan. 

should  hare  been  confiding;  violent  and  hostile,  where  he 
ought  to  have  been  friendly.  It  led  him  into  false  posi- 
tions, from  which  he  was  too  proud  to  withdraw.  It  stood 
in  the  path  of  his  advancement  among  men,  like  a  flaming 
sword.  It  turned  friends  into  enemies,  and  froze  off  the 
tendrils  of  love.  It  brought  humiliation,  grief  and  loneli- 
ness to  his  soul  and  to  his  hearthstone. 

Let  us  drop  the  veil  over  the  contemplation  of  these  in- 
firmities of  a  great  and  noble  mind.  If,  as  I  believe,  these 
afflictions  of  character  were  mostly  but  manifestations  of 
physical  disease,  which,  at  varying  periods  and  with  un- 
equal intensity,  spread  inflammation  through  the  sensitive 
fibre  of  his  brain,  the  fault  was  not  his  own.  The  tear  of 
pity  must  fall  at  view  of  the  sufferings  his  nature  inflicted. 
For,  to  whatever  his  infirmities  were  due,  he  was  their  vic- 
tim and  the  great  sufferer.  With  his  death,  their  conse- 
quences mainly  cease.  What  he  leaves  behind  is  the  prod- 
uct and  the  legacy  of  his  worth  and  virtue.  The  good  he 
has  done  lives  after  him ;  let  the  evil  be  interred  with  his 
bones. 

When  we  review  his  life,  let  us  turn  from  its  darkness 
and  weakness,  and  rather  view  him  in  periods  of  light  and 
power.  Look  on  him  in  the  happy  hours  of  health.  Thus 
shall  you  perceive  the  possibilities  of  his  forces,  and 
better  take  the  lesson  from  his  infirmities. 

It  is  for  us  to  contemplate  him  as  he  was  to  us,  the  law- 
yer and  the  judge.  No  lawyer  ever  lived  whose  standard 
of  professional  excellence  was  exalted  higher.  His  con- 
ception of  professional  morals  was  as  noble  and  refined, 
as  pure  and  elevating,  as  wisdom,  philosophy  and  religion 
can  form.  He  loved  and  honored  the  profession  of  the  law, 
above  all  occupations  of  men ;  he  reverenced  it  as  "subro- 
gated,"  so  he  said,  "on  earth,  for  the  angels  who  adminis- 
17 


Life  of  Chief  Justice  Ryan,  258 

ter  God's  law  in  Heaven."  "This,"  said  he  to  the  graduat- 
ing class  of  the  law  school  in  1873,  "is  the  true  ambition  of 
the  lawyer :  to  obey  God  in  the  service  of  society ;  to  fulfill 
His  law  in  the  order  of  society;  to  promote  His  order  in 
the  subordination  of  society  to  its  own  law,  adopted  under 
His  authority;  to  minister  to  His  justice  by  the  nearest 
approach  to  it,  under  the  municipal  law,  which  human  in- 
telligence and  conscience  can  accomplish." 

He  brought  to  the  bench  this  spirit,  and  many  judgments 
of  this  court  have  been  radiant  with  its  glory.  They  will 
be  beacons  on  the  track  to  pilot  generations  of  lawyers  to 
come.  Let  the  hopeful  enthusiasm  of  youth  look  upon  his 
virtues,  and,  shunning  his  imperfections,  strive  for  his 
height  of  learning  and  power.  Can  the  neophyte,  who  sees 
in  dreams  the  gleaming  splendor  of  professional  grandeur, 
but  attain  the  one  and  avoid  the  other,  he  may  confidently 
expect  the  highest  rewards  to  which  the  noble  profession 
leads. 


SELECTED  OPINIONS 

OF 

CHIEF  JUSTICE  RYW. 


The  Attorney  General  vs.  The  Chicago  and  Northwestern 
Railway  Company. 

The  Attorney  General  vs.  The  Chicago,  Milwaukee  and 

St.  Paul  Railway  Company. 

June  Term,  1874. 

(35  Wis.  425.) 

On  the  8th  day  of  July,  1874,  the  attorney  general  of 
Wisconsin,  acting  in  behalf  of  the  state,  filed  in  the  Su- 
preme Court  informations  praying  for  writs  of  injunction 
against  the  two  defendant  railroad  companies,  to  restrain 
the  defendants  from  exacting  tolls  for  the  carriage  of  pas- 
sengers or  freight  in  excess  of  the  maximum  rates  estab- 
lished by  ch.  273,  of  the  Laws  of  1874  of  that  state.  The 
motions  duly  came  on  to  be  argued  on  the  4th  of  August 
following,  and  the  argument  terminated  on  the  llth  of  that 
month.  The  state  was  represented  in  the  argument  by  I.  C. 
Sloan,  Assistant  Attorney  General,  H.  S.  Orton,  after- 
wards Chief  Justice  of  the  Wisconsin  Supreme  Court,  and 
L.  S.  Dixon,  former  Chief  Justice  thereof.  The  defend- 
ants were  represented  by  C.  B.  Lawrence,  B.  C.  Cook, 
Smith  &  Lamb,  John  W.  Gary  and  P.  L.  Spooner.  An  ex- 
tended oral  argument  was  made  by  Mr.  Dixon,  though  no 
brief  seems  ever  to  have  been  filed  by  him  in  the  case. 

The  legislation  which  was  thus  brought  under  review,  is 


Opinions  of  Chief  Justice  Ryan.  260 

usually  referred  to  as  the  "Granger  Laws."  At  or  about 
the  time  the  Wisconsin  statute  above  mentioned  was  passed, 
the  States  of  Illinois,  Iowa  and  Minnesota  passed  similar 
statutes,  all  having  for  their  object  the  regulation  of  the 
charges  which  public-service  corporations  might  make  for 
their  service.  The  defendant  railroad  companies  on  these 
motions  challenged  the  jurisdiction  of  the  Wisconsin  Su- 
preme Court  and  apparently  raised  the  other  numerous 
questions  discussed  in  the  opinion  of  Chief  Justice  Ryan 
following. 

The  Syllabus  of  this  case,  as  reported,  is  as  follows : 

That  clause  of  sec.  3,  art.  VII,  of  the  constitution  of  this 
state,  which  empowers  the  supreme  court  "to  issue 
writs  of  habeas  corpus,  mandamus,  injunction,  quo 
warranto,  certiorari"  etc.,  and  to  "hear  and  deter- 
mine the  same,"  was  designed  to  give  this  court  orig- 
inal jurisdiction  of  all  judicial  questions  affecting  the 
sovereignty  of  the  state,  its  franchises  and  preroga- 
tives, or  the  liberties  of  its  people. 

Hereafter,  in  all  cases  in  which  an  exercise  of  this  orig- 
inal jurisdiction  is  sought  leave  must  be  obtained  of 
the  court  upon  a  prima  facie  showing  that  the  case  is 
a  proper  one  for  its  cognizance. 

This  court  has  original  jurisdiction  of  the  writ  of  in- 
junction, as  a  quasi  prerogative  writ,  where  that  is 
the  proper  remedy,  in  matters  publici  juris,  within 
the  scope  of  the  jurisdiction  upon  information  of  the 
attorney  general ;  but  not  in  suits  between  private  par- 
ties or  for  the  determination  of  mere  private  rights. 

Courts  of  equity  have  jurisdiction,  upon  information  of 
the  attorney  general,  to  restrain  corporations  from  ex- 
cess or  abuse  of  corporate  franchise,  or  violation  of 
public  law  to  the  public  detriment 


261  Attorney  General  v.  Railroad  Cos. 


This  jurisdiction  of  equity  was  already  established  at 
the  time  of  the  adoption  of  our  state  constitution ;  and 
sec.  5,  art.  I,  of  that  instrument  (which  declares  that 
the  right  of  trial  by  jury  shall  remain  inviolate,  and 
shall  extend  to  all  cases  at  law"),  has  no  application 
to  it.  But  the  defenses  to  the  present  information  rest 
only  in  questions  of  law,  and  the  granting  of  the  in- 
junctions sought  will  not  have  the  effect  to  deprive 
defendants  of  any  trial  by  jury. 

Sees.  13  and  14,  ch.  148,  K.  S.,  neither  confer  any  ju- 
risdiction upon  this  court,  nor  limit  its  jurisdiction. 
Whether  they  limit  the  jurisdiction  of  the  circuit 
courts  in  cases  of  injunction  against  corporations,  is 
not  here  determined. 

Ch.  273,  Laws  of  1874,  after  fixing  the  maximum  tolls 
chargeable  by  railroad  companies  in  this  state,  gives 
certain  civil  remedies  against  the  companies  to  persons 
injured  by  violations  of  the  rates  so  fixed,  and  also 
provides  penalties  against  the  agents  of  the  companies 
who  may  be  guilty  of  such  violations ;  but  it  does  not 
provide  penalties  against  the  companies  themselves. 
Held,  that  the  legal  remedies  so  provided  furnish  no 
sufficient  ground  for  denying  the  relief  here  sought  by 
injunction  against  the  corporations. 

(It  seems  that  the  rule  that  equitable  proceedings  will 
not  lie  to  enforce  a  statute  which  provides  penalties 
for  all  violations  thereof,  is  not  applicable  to  an  in- 
formation of  the  attorney  general  to  restrain  a  viola- 
tion of  public  right  by  a  corporation.  But  it  was  not 
necessary  to  decide  that  question  here. ) 

It  is  no  objection  to  the  granting  of  an  injunction  in  such 
a  case,  that  the  information  does  not  show  any  specific 
injury  done  to  the  public ;  but  it  is  sufficient  that  facts 


Opinions  of  Chief  Justice  Ryan.  262 

are  alleged  which  satisfy  the  court  that  there  is  dis- 
obedience of  the  law  by  the  defendant,  productive  of 
public  mischief. 

In  such  cases  the  court  cannot  speculate  whether  obedi- 
ence to  the  law  by  the  defendant  may  not  cause  greater 
mischief  to  the  public  than  is  caused  by  disobedience. 

The  rule  that  the  granting  or  withholding  of  an  injunc- 
tion rests  in  the  sound  discretion  of  the  court,  relates 
only  to  judicial  discretion,  and  to  injunctions  in  aid 
of  private  rights.  The  granting  of  an  injunction  (or 
a  mandamus}  as  a  quasi  prerogative  writ,  when  nec- 
essary to  protect  public  rights,  is  not  a  matter  of  dis- 
cretion. 

Where  there  are  two  affirmative  statutes  upon  the  same 
subject,  without  any  express  words  of  repeal,  one  is 
not  to  be  construed  as  repealing  the  other,  if  both  may 
consist  together;  and  the  court  ought  to  seek  such  a 
construction  as  will  reconcile  them  together. 

Chapters  292  and  341,  Laws  of  1874  (approved  March 
12th),  are  both  susceptible  of  being  so  construed  as 
to  consist  with  ch.  273  of  the  same  year  (approved 
March  llth)  ;  and  the  last  named  act  is  not  repealed 
by  either  of  the  former. 

The  question  of  repeal  being  one  of  legislative  intent, 
the  facts  that  the  three  acts  were  pending  together, 
and  were  all  passed  within  two  successive  days,  and 
that  the  legislature,  by  a  subsequent  joint  resolution, 
directed  the  publication  of  ch.  273  to  be  delayed  so 
that  it  should  not  become  a1  law  until  after  the  other 
two  acts  had  taken  effect — may  be  considered  by  the 
court,  as  showing  that  the  legislature  did  not  intend 
any  repeal. 


263  Attorney  General  v.  Railroad  Cos. 

(Possibly  if  the  acts  were  inconsistent,  ch.  273,  by  rea- 
son of  such  later  publication,  would  repeal  such  parts 
of  the  other  acts  as  were  irreconcilable  with  it.) 

Chapter  273,  Laws  of  1874,  in  its  classification  of  the 
railroads  of  this  state,  names  among  those  in  "Class 
A,"  the  "Milwaukee  &  St  Paul  Kailway  Company." 
One  of  the  defendant  companies  was  formerly  known 
by  the  name,  and  was  so  designated  in  previous  acts 
of  the  legislature,  granting  powers  here  claimed  by 
said  company  by  virtue  of  such  acts,  including  an  act 
approved  March  10,  1874.  In  February,  1874,  how- 
ever, under  a  general  statute  providing  for  such 
changes  of  corporate  names,  said  company  had 
changed  its  name  to  the  "Chicago,  Milwaukee  &  St. 
Paul  Railway  Company,"  by  which  name  it  is  here 
made  defendant  Xo  other  company  has  ever  been 
known  in  this  state  by  the  name  first  above  stated. 
Held,  that  the  provisions  of  said  act  relating  to  the 
"Milwaukee  &  St.  Paul  Railway  Company"  must  be 
regarded  as  applying  to  said  defendant. 

The  constitutional  amendment  of  1871  (which  prohibits 
the  legislature  from  passing  special  laws,  amongst 
other  purposes,  "for  granting  corporate  powers  or 
privileges,  except  to  cities,"  and  directs  it  to  provide 
general  laws  foj  such  purposes,  "which  shall  be  uni- 
form throughout  the  state"),  relates  only  to  acts  of 
incorporation  thereafter  to  be  granted,  and  does  not 
impair  the  power  of  alteration  or  repeal,  reserved  to 
the  legislature  by  the  state  constitution,  in  respect  to 
charters  granted  prior  to  such  amendment. 

Whether  said  ch.  273,  considered  as  an  amendment  of 
the  general  railroad  law  of  1872,  would  be  invalid  un- 


Opinions  of  Chief  Justice  Ryan.  264 

der  said  constitutional  amendment  of  1871,  because 
not  uniform  in  its  operation  throughout  the  state,  is 
not  here  decided;  the  provisions  of  said  act  touching 
the  defendant  companies  being  regarded  as  an  altera- 
tion of  their  special  charters. 

Under  the  decisions  of  the  supreme  court  of  the  United 
States  in  Dartmouth  College  v.  Woodward,  and  sub- 
sequent cases,  this  court  must  hold  that  charters 
granted  to  private  corporations,  including  railroad 
companies,  are  contracts,  within  the  meaning  of  subd. 
1,  sec.  10,  aTt.  I,  of  the  constitution  of  the  United 
States,  which  prohibits  the  passage  by  a  state  of  any 
"law  imparing  the  obligation  of  contracts." 

Although  the  legislature  has  a  general  authority  to  regu- 
late the  tolls  of  railroads  under  the  police  power,  where 
the  exercise  of  that  power  is  not  in  some  way  sus- 
pended or  restrained,  yet  such  power  cannot  be  exer- 
cised where  the  right  of  a  railroad  company  to  take 
tolls  at  its  discretion  is  fixed  by  its  -charter,  without 
any  reserved  right  in  the  legislature  to  alter  such  char- 
ter. 

/(Under  a  grant  to  a  railroad  company  of  a  right  to  take 
such  tolls  as  it  shall  think  reasonable,  it  seems  that  a 
person  aggrieved  by  the  exaction  of  unreasonable  tolls 
would  still  have  a  remedy  by  an  action  at  law,  and 
that  the  courts  would  have  power  to  determine  whether 
the  tolls  charged  were  reasonable  in  fact. ) 

Sec.  1,  art.  XI,  of  the  constitution  of  this  state,  after  em- 
powering the  legislature  to  create  "corporations  with- 
out banking  powers  or  privileges,"  provides  that  "all 
general  laws  or  special  acts  enacted  under  the  provis- 
ions of  this  section  may  be  altered  or  repealed  by  the 
legislature  at  any  time  after  their  passage."  Held, 


265  Attorney  General  v.  Railroad  Cos. 

that  this  reserved  power  to  alter  or  repeal  operates  as 
a  qualification  of  every  such  grant  of  corporate  fran- 
chises made  by  the  legislature  of  this  state,  and  a  sub- 
sequent exercise  of  such  reserved  power  cannot  be  re- 
garded as  impairing  the  obligation  of  the  contract 

The  power  so  reserved  is  limited  only  by  the  words  used 
to  express  the  reservation.  A  corporate  charter  of 
one  kind  cannot  be  changed  into  one  of  an  entirely 
different  kind,  under  the  power  to  alter,  but  may  be 
changed  in  detail,  so  long  as  the  general  identity  of 
the  corporation  remains.  'And  where  the  charter  of 
a  railroad  company  empowers  it  to  exact  tolls  at  its 
discretion,  an  act  of  the  legislature  restricting  the  com- 
pany to  the  maximum  rates  prescribed,  is  an  altera- 
tion within  the  scope  of  such  reserved  power. 

This  power  to  alter  or  repeal  the  charters  of  corporations 
does  not  affect  their  rights  in  their  property,  other 
than  the  franchises ;  but  such  rights  remain  inviolable. 

Whether  or  not  a  corporation  owning  a  railroad  in  this 
state  would  have  a-  right  to  take  tolls  as  an  attribute 
of  ownership,  without  any  franchise  to  do  so  (a  ques- 
tion not  considered),  still,  where  it  has  accepted  a 
franchise  to  take  tolls,  it  must  be  held  to  take  the  right 
under  the  grant,  and  subject  to  the  power  of  the  legis- 
lature to  alter  the  same. 

A  mortgage  of  a  railroad  and  its  franchises,  made  by 
permission  of  the  legislature,  does  not  confer  on  the 
mortgagee  any  greater  rights  than  the  mortgagor  had, 
nor  affect  the  power  of  the  legislature  to  alter  the 
franchises. 

(It  seems  that  valid  alterations  of  its  charter  are  obliga- 
tory upon  a  private  corporation,  without  its  assent 
thereto;  but  if  otherwise,  it  must  accept,  or  discon- 
tinue its  operations  as  a  corporate  body.) 


Opinions  of  Chief  Justice  Ryan,  266 

(It  seems,  also,  that  where  such  corporations  have  pro- 
ceeded under  their  charters  after  the  passage  of  a  valid 
act  making  alterations  therein,  this  raises  a  presump- 
tion that  they  exercised  their  right  of  election  (if  they 
had  any)  by  accepting  the  alterations.  But  it  was  not 
necessary  to  determine  this  or  the  preceding  question 
in  a  suit  to  restrain  such  companies  from  future  viola- 
tions of  the  amending  act ) 

(It  seems  that  a  charter  granted  to  a  railroad  company 
by  the  territorial  legislature  of  Wisconsin,  and  ac- 
cepted by  the  company  prior  to  the  adoption  of  the 
state  constitution,  without  any  power  of  alteration  or 
repeal  reserved  in  the  charter  itself  or  by  any  general 
law  of  the  territory  in  force  when  such  charter  was 
passed  or  accepted,  would  have  been  unaffected  by  the 
reservation  of  power  contained  in  sec.  1,  art.  XI,  of 
our  state  constitution.) 

(It  seems,  also  that  if  a  corporation  organized  under 
such  a  charter  were  permitted  by  an  act  of  the  state 
legislature  to  mortgage  its  property  and  franchises, 
and,  if,  upon  default  made  in  payment  of  the  mort- 
gage debt,  another  corporation,  created  by  act  of  the 
state  legislature,  were  permitted  to  purchase  at  a  fore- 
closure sale  the  property  and  franchises  so  mortgaged, 
such  second  company  would  hold  the  franchises  so 
purchased  unaffected  by  the  right  of  repeal  or  altera- 
tion reserved  in  the  state  constitution.) 

(A  power  reserved  by  such  a  territorial  charter  to  the 
legislature  of  the  territory  or  state,  to  "resume  the 
rights  and  privileges  granted"  by  it,  in  case  of  any 
violation  of  its  provisions,  would  be  only  a  power  of 
repeal,  and  would  not  authorize  an  act  merely  limit- 
ing the  tolls ;  and  would  require  for  its  exercise  a  judi- 


267  Attorney  General  v.  Railroad  Cos. 

cidl  determination  of  the  fact  that  the  charter  had 
been  violated.  Whether  the  territorial  or  state  legis- 
lature could  exercise  such  a  judicial  function  under 
such  a  clause,  and  thereupon  repeal  the  charter, 
qucere.) 

[An  act  of  the  territorial  legislature  approved  February 
11,  1847,  entitled  "an  act  to  incorporate  the  Mil- 
waukee &  Waukesha  Railroad  Company,"  appoints 
commissioners  to  take  subscriptions  of  stock  in  said 
company,  and  provides  that  as  soon  as  a  certain 
amount  of  the  stock  shall  be  subscribed  and  a  certain 
sum  actually  paid  on  each  share,  and  a  certain  state- 
ment showing  these  facts  deposited  with  the  treasurer 
of  Milwaukee  County,  the  subscribers  of  such  stock 
shall  be  a  corporation  vested  with  the  franchises  speci- 
fied in  the  act.  Held, 

(1)  That  the  corporation  did  not  come  into  exist- 
ence until  such  stock  was  subscribed  and  certified 
(those  acts  being  named  in  the  statute  as  conditions 
precedent),    and   perhaps  not  until   directors   were 
elected. 

(2)  That  under  such  a  charter,  where  the  present 
existence  of  the  corporation  appears,  there  is  a  pre- 
sumption that  it  was  organized  immediately  after  th& 
passage  of  the  charter. 

'An  act  of  the  territorial  legislature  amendatory  of  the 
foregoing,  approved  March  11,  1848,  authorizes  the 
"Milwaukee  &  Waukesha  Railroad  Company"  to  ex- 
tend its  road  from  Waukesha  to  the  Mississippi  River, 
and  provides  that  whenever  said  company  shall  decide 
to  so  extend  its  road,  it  may  increase  for  that  purpose 
its  capital  stock,  etc.  Held,  that  this  act,  in  the  ab- 
sence of  proof  to  the  contrary,  would  create  a  presump- 


Opinions  of  Chief  Justice  Ryan.  268 

tion  that  the  corporation  was  in  existence  at  the  time 
of  its  passage. 

It  appearing,  however,  that  the  statement  of  subscrip- 
tion and  payment  of  capital  stock  of  said  company  was 
not  made  and  deposited  as  required  by  the  act  of  18  47, 
until  April,  1849,  and  that  the  first  board  of  directors 
was  not  elected  until  May,  1849,  this  is  conclusive 
that  the  charter  was  accepted,  and  the  corporation  or- 
ganized, after  the  adoption  of  the  state  constitution 
(in  1848),  although  it  also  appears  that  as  early  as 
November,  1847,  and  from  thence  until  May,  1849, 
action  was  taken,  by  the  commissioners  named  in  the 
charter,  to  receive  subscriptions  of  said  stock,  and  that 
they  elected  a  president  and  secretary,  opened  books 
of  subscription,  and  applied  to  the  territorial  legis- 
lature for  the  supplementary  act  of  March  11,  1849. 

'The  rules  that  acceptance  of  a  charter  applied  for,  or 
beneficial  to  the  corporation,  may  be  presumed,  and 
that,  in  similar  cases,  slight  acts  of  the  corporators 
looking  towards  an  acceptance  are  sufficient  to  estab- 
lish it,  relate  to  charters  which  name  the  corporators 
and  declare  them  incorporated,  without  preliminary 
steps ;  and  they  do  not  apply  to  a  charter  not  naming 
the  corporators,  but  prescribing  conditions  by  which 
indeterminate  persons  may  become  incorporated. 

Under  said  act  of  1847,  the  commissioners  could  do  no 
act  tending  to  prove  acceptance  of  the  charter,  because 
they  had  no  right  to  accept;  and  the  stock  subscribers 
could  do  no  act  tending  to  prove  acceptance  before 
subscription  of  the  whole  capital  stock,  because  until 
then  they  had  no  right  to  accept. 

'The  act  of  March  11,  1848,  is  not  conclusive  evidence  of 
the  existence,  at  the  time  of  its  passage,  of  the  corpor- 


269  Attorney  General  v.  Railroad  Cos. 

ation  there  named.  Its  terms  are  consistent  with  a 
belief  on  the  part  of  the  legislature  that  the  company 
was  not  then  organized;  and  even  if  it  declared  in 
terms  that  the  corporation  had  been  organized,  it 
seems  that  such  declaration  could  not  prevail  over  the 
contrary  fact  clearly  established  by  evidence. 

The  rule  that  legislative  recognition,  in  a  subsequent 
statute,  of  a  corporation  de  facto,  will  cure  irregular- 
ities in  its  organization  and  waive  forfeiture  incurred, 
does  not  apply  to  this  case,  in  which  there  was  no  cor- 
poration de  facto  at  the  time  of  the  passage  of  the  act 
of  1848. 

Sec.  2,  art.  XIV  of  the  state  constitution,  provided  that 
all  laws  then  in  force  in  the  territory  not  repugnant 
to  said  constitution  should  remain  in  force  until  they 
should  expire  by  their  own  limitation,  or  be  altered 
or  repealed  by  the  legislature.  Held,  that  the  terri- 
torial acts  of  1847  and  1848,  providing  for  the  incor- 
poration of  the  "Milwaukee  &  Waukesha  Railroad 
Company,"  were  continued  in  force  after  the  estab- 
lishment of  the  state  government,  by  virtue  of  said 
sec.  2,  art.  XIV  of  the  constitution ;  and  upon  the  sub- 
sequent acceptance  of  the  franchises  by  said  company, 
its  charter  became  a  contract  with  the  state,  subject  to 
the  power  of  alteration  or  repeal  expressly  reserved 
to  the  state  legislature  by  said  section. 

(A  general  act  concerning  corporations  in  the  territorial 
revised  statutes  of  1839,  reserved  to  the  legislature 
power  to  amend,  alter  or  repeal  all  subsequent  acts 
of  incorporation.  By  the  first  state  revision,  of  1849, 
said  act  of  1839  (with  many  other  acts)  was  repealed 
(the  repeal  taking  effect  January  1,  1850),  with  a 
proviso  that  such  repeal  should  not  affect  any  right 


Opinions  of  Chief  Justice  Ryan.  270 

already  accrued.  Whether  the  legislative  right  re- 
served by  the  act  of  1839  entered  into  and  became  a 
part  of  the  contract  between  the  state  and  the  "Mil- 
waukee &  Waukesha  Railroad  Company,"  upon  the 
acceptance  of  its  charter ;  whether,  as  a  right  accrued, 
this  reserved  right  would  remain  unaffected  by  the  sub- 
sequent repeal  of  the  acts  of  1839 ;  whether,  without 
such  reserved  power  attending  them,  the  acts  of 
1847—8  would  not  have  been  repugnant  to.  the  state 
constitution ;  and  whether  the  acceptance  by  the  com- 
pany of  the  charter  after  the  adoption  of  the  state 
constitution  was  not  an  acceptance  subject  to  the  leg- 
islative power  reserved  by  the  act  of  1839  and  by  sec. 
1,  art.  XI  of  the  constitution,  are  questions  not  here 
decided.) 

"Thosq  provisions  of  ch.  273,  Laws  of  1874,  which  limit 
the  tolls  chargeable  by  the  Chicago  &  Northwestern 
Railway  Company  and  the  Chicago,  Milwaukee  &  St. 
Paul  Railway  Company,  upon  their  lines  of  Railway 
within  this  state,  are  valid,  and  are  applicable  to  the 
road  of  the  last  named  company  extending  from  Mil- 
waukee to  Prairie  du  Chien,  which  it  owns  as  succes- 
sor to  the  property  and  franchises  of  the  "Milwaukee 
&  Waukesha  Railroad  Company."  But  this  decision 
relates  only  to  cases  where  the  transportation  is  wholly 
within  this  state.  As  to  commerce  between  states, 
nothing  is  here  decided. 

!An  information  of  the  attorney  general,  ex  officio,  is 
equivalent  to  a  bill  in  chancery  verified  on  information 
and  belief,  and,  like  such  a  bill  in  proper  cases,  calls 
for  an  answer  under  oath ;  but  a  temporary  injunction 
will  not  usually  go  upon  such  an  information,  or  such 
.a  bill,  unsupported  by  positive  affidavit,  until  the  de- 


271  Attorney  General  v.  Railroad  Cos. 

fendant  has  had  an  opportunity  to  contradict  it  on 
oath  and  has  failed  to  do  so.  In  the  present  cases, 
affidavits  were  filed  by  the  attorney  general  before  the 
motions  for  temporary  injunctions  were  made,  which 
affidavits,  not  being  answered,  are  sufficient  to  show 
the  disregard  by  defendants  of  the  maximum  rates 
fixed  by  the  act  of  1874. 

The  attorney  general  has  his  election  to  proceed  against 
the  defendant  companies  for  their  alleged  violations 
of  legal  duty,  either  by  information  in  the  nature  of 
quo  warranto,  or  by  injunction ;  but  the  court  will  re- 
quire him  to  make  his  election,  and  not  to  proceed  by 
both  remedies. 

Before  permitting  the  temporary  injunctions  to  issue  in 
these  cases,  the  court  requires  the  attorney  general  to 
dismiss  the  informations  in  the  nature  of  quo  warranto 
pending  against  the  same  defendants,  and  to  file  in 
these  cases  a  stipulation  (signed  by  him  ex  officio  and 
approved  by  the  court  or  one  of  the  justices  thereof) 
that  the  state  will  not  proceed  by  way  of  quo  warranto 
for  forfeiture,  or  for  contempt  in  violating  the  injunc- 
tions so  to  issue,  for  any  violation  by  defendants,  be- 
fore a  certain  day  here  fixed,  of  the  above  named  pro- 
visions of  the  act  of  1874. 

"No  statute  can  abolish  a  writ  given  by  the  constitution,  as 
such  writ  existed  when  the  constitution  was  adopted. 
And  the  jurisdiction  of  this  court  being  founded  on  the 
writ  of  injunction,  the  writ  itself  (and  not  the  order 
provided  by  the  statute  as  a  substitute)  will  issue  in 
such  cases. 

Eyan,  Chief  Jusice.     These  causes,  although  before  the 
oourt  now  on  motion  only,  are  of  high  importance,  for  both 


Opinions  of  Chief  Justice  Ryan.  272 

the  interests  and  the  principles  which  they  involve.  Most 
of  the  questions  to  be  passed  upon  were  elaborately  argued 
with  much  learning  and  ability  at  the  bar,  and  all  have 
been  patiently  and  laboriously  considered  by  us,  in  view 
of  the  gravity  and  delicacy  of  the  decision  which  we  have 
to  make. 

I.  The  first  question  to  be  settled,  and  the  one  which  has 
given  us  the  greatest  difficulty  to  settle,  is  the  jurisdiction 
of  this  court  to  entertain  the  informations  in  these  causes. 

Since  the  case  of  Attorney  General  v.  Blossom,  1  Wis. 
317,  the  original  jurisdiction  of  this  court  under  the  third 
clause  of  sec.  3,  art.  VII  of  the  constitution  of  this  state, 
has  never  been  doubted  in  this  court,  has  been  recognized 
and  asserted  in  many  cases,  and  is  no  longer  an  open  ques- 
tion. The  original  jurisdiction  is  conferred  and  limited 
by  the  power  "to  issue  writs  of  habeas  corpus,  mandamus, 
injunction,  quo  warranto,  certiorari,  and  other  original  and 
remedical  writs,  and  to  hear  and  determine  the  same." 
The  court  has  many  times  exercised  original  jurisdiction 
in  cases  of  habeas  corpus,  mandamus,  quo  warranto  and 
certiorari.  This  is  the  first  time  it  has  been  called  upon 
to  assert  original  jurisdiction  of  injunction.  In  the  case 
of  Cooper  v.  Mineral  Point,  34  Wis.  181,  application  was 
made  to  this  court  to  issue  a  writ  of  injunction  in  a  cause 
pending  in  the  circuit  court.  The  court  disclaimed  juris- 
diction to  grant  the  writ  in  a  cause  not  in  this  court,  under 
either  its  appellate  or  original  jurisdiction;  but  took  occa- 
sion to  assert  its  jurisdiction  to  issue  the  writ  in  a  proper 
case  commenced  in  this  court,  as  an  exercise  of  its  original 
jurisdiction.  But  in  neither  of  these  cases,  nor — so  far  as 
we  are  aware — in  any  other  case,  has  it  been  considered 
what  are  the  nature  and  limits  of  the  original  jurisdiction 
conferred  on  this  court  in  cases  of  injunction,  or  how  that 


273  Attorney  General  v.  Railroad  Cos. 

jurisdiction  is  to  be  exercised.  And  indeed  the  distinction 
between  the  writ  of  injunction  and  the  other  writs  granted 
seems  to  have  been  overlooked  in  discussions  which  had  re- 
lation chiefly  to  the  nature  and  functions  of  those  other 
writs. 

In  Attorney  General  v.  Blossom,  Smith,  J.,  speaking  of 
the  group  of  writs  given  to  the  court,  says  that  "this  class 
of  writs,  it  would  seem,  appertain  to  and  are  peculiarly  the 
instruments  of  the  sovereign  power,  acting  through  its  ap- 
propriate department,  prerogatives  of  sovereignty,"  etc. 
He  calls  them  indiscriminately  original  and  prerogative 
writs ;  and  says  that  they  "differ  essentially,  in  their  char- 
acter and  objects,  from  ordinary  writs  issued  by  the  courts 
in  the  regular  and  usual  administration  of  the  law  between 
parties.  They  go  to  accomplish  peculiar  and  specific  ob- 
jects, carrying  with  them  the  special  mandate  of  the  sover- 
eign power,  etc.  They  bear  no  resemblance  to  the  usual 
processes  of  courts  by  which  controversies  between  private 
parties  are  settled  by  the  judicial  tribunals  of  every  grade." 
He  speaks  particularly  of  the  writs  of  certiorari  and  in- 
junction as  "remedical  writs  of  high  judicial  character,  and 
essential  to  the  complete  exercise  of  the  function  of  sover- 
eignty in  the  administration  of  justice." 

Substantially  correct  of  all  the  other  writs  named,  this 
language  does  not  appear  to  be  accurately  used  of  the  writ 
of  injunction.  At  common  law,  all  the  other  writs  given 
were  prerogative  writs,  issuing  on  behalf  on  the  state  only ; 
and  though  sometimes  used  for  private  remedy,  were  so 
used  on  special  leave  given,  and  in  the  name  of  the  state, 
and  were  not  ordinary  writs  applicable  to  private  contro- 
versies or  issuable  of  course.  All  the  other  writs  must  or 
might  be  original ;  as  given  to  this  court  they  must  be  orig- 
inal writs,  in  the  modern  and  practical  sense  of  the  term 
18 


Opinions  of  Chief  Justice  Ryan.  274 

original  writs.  The  writ  of  injunction  was  not  original. 
They  are,  as  given,  essentially  jurisdictional  writs,  imply- 
ing the  jurisdiction  granted,  in  each  case,  ex  vi  termini. 
The  writ  of  injunction  was  not  an  original  writ,  and  by 
itself,-  as  given,  implies  no  specific  jurisdiction.  It  was  a 
judicial  writ,  going  only  upon  some  judgment,  interlocu- 
tory or  final,  of  the  court  issuing  it,  in  some  case  of  which 
the  court  had  jurisdiction  otherwise;  never  jurisdictional, 
but  always  remedial  in  aid  of  jurisdiction  already  at- 
tached, within  the  vast  range  of  equitable  cognizance. 
And  the  difficulty  arises  wholly  from  placing  the  non ju- 
risdictional writ  in  a  group  of  jurisdictional  writs;  this 
judicial  writ  amongst  original  writs ;  this  equitable  writ  of 
vague  and  varied  application  amongst  common  law  writs 
of  sharp  and  terse  significance ;  this  confusion  of  equitable 
and  legal  jurisdiction.  In  Attorney  General  v.  Blossom, 
the  jurisdiction  in  question  was  quo  warranto.  And  elab- 
orately as  the  question  was  discussed  by  the  able  judge  who 
wrote  the  opinion,  he  seems  to  have  followed  the  framers 
of  the  constitution  in  a  want  of  perception  that  the  writ  of 
injunction  appeared  to  be  illy  grouped  with  habeas  corpus, 
mandamus,  quo  warranto  and  certiorari,  and  that  the  court 
might  be  troubled  some  day,  as  it  has  been  now,  how  to  take 
jurisdiction  of  a  writ  not  before  jurisdictional ;  how  to  hear 
and  determine  a  writ  not  before  original. 

That  common  law,  which  gave  the  original  writs  adopted 
by  the  constitution,  gave  the  forms  of  procedure.  The  ju- 
risdiction of  them,  once  ascertained,  involved  nothing  diffi- 
cult, nothing  new;  and  when  they  were  under  considera- 
tion, the  original  jurisdiction  of  the  court  was  easily 
asserted  and  discussed.  It  was  natural  that  the  court 
should  overlook,  it  was  fitting  that  the  court  should  post- 
pone, the  difficulty  arising  on  original  jurisdiction  of  in- 


275  Attorney  General  v.  Railroad  Cos. 

junction,  until  the  writ  itself  should  be  applied  for,  and  a 
proceeding  taken  to  put  its  original  jurisdiction  of  the  writ 
in  motion.  And  the  questions  are  now  here,  for  the  first 
time  for  settlement,  What  is  that  jurisdiction  ?  What  are 
its  import  and  limits?  How  and  at  whose  instance  is  it 
to  be  asserted  ?  The  writ  does  not  of  itself,  like  the  rest 
of  the  group  of  writs  given,  furnish  an  answer  to  these  ques- 
tions. 

From  the  beginning  of  the  discussion  of  these  motions, 
this  difficulty  stared  us  in  the  face,  and  we  called  on  the 
bar  for  a  solution  of  it  On  the  one  side,  we  were  first 
told  that  the  writ  gives  this  court  general  equitable  juris- 
diction, in  all  cases,  between  all  parties,  where  injunction 
is  prayed ;  thus  substantially  making  this  court  one  of  gen- 
eral equitable  jurisdiction,  concurrent  with  all  the  circuit 
courts  of  the  state.  Later  in  the  discussion  an  attempt 
was  made  to  limit  this  interpretation  to  cases  in  which  per- 
petual injunction  is  the  sole  relief  sought.  The  latter  con- 
struction is  hardly  consistent  with  the  indisposition  of  a, 
court  of  equity  to  be  the  handmaid  of  other  courts,  or  the 
general  maxim  that  a  court  of  equity  having  once  obtained 
jurisdiction  for  one  purpose,  will  retain  it  for  all  purposes ; 
or  if  consistent,  not  very  available  as  a  limitation.  And 
an  original  equitable  jurisdiction,  however  restricted,  of 
purely  private  causes,  concerning  private  interests,  between 
private  persons,  would  be  wholly  inconsistent  with  the  man- 
ifest policy  of  the  constitution  to  limit  this  court  to  ap- 
pellate jurisdiction,  superintending  control  over  inferior 
courts,  and  original  jurisdiction  in  certain  causes  publici 
juris,  as  is  held  in  Attorney  General  v.  Blossom.  It  would 
be  a  gross  blemish  upon  the  symmetry  and  economy  of 
the  constitutional  distribution  of  jurisdiction,  a  solecism 
against  the  judicial  order  observed  in  it,  to  attribute  to  the 


Opinions  of  Chief  Justice  Ryan.  276 

supreme  court  of  the  state  original  jurisdiction  in  one  class 
of  causes  of  private  right,  which  is  carefully  excluded  in 
all  other  causes,  for  no  inherent  distinction ;  for  no  assign- 
able reason,  except  that  it  seems  to  follow  from  words  used 
for  a  different  purpose;  a  purely  accidental  and  incongru- 
ous jurisdiction,  which  was  surely  not  designed.  (See  the 
cases  in  Missouri  cited  infra.}  We  could  not  accept  so 
vicious  and  mischievous  a  construction,  resting  really  upon 
an  imputation  of  an  inaccurate  use  of  terms  in  the  consti- 
tution; and  which  after  all  does  not  fully  meet  the  diffi- 
culty of  jurisdiction  given  of  a  nonjurisdictional  writ. 

On  the  other  side  it  was  suggested  that  the  writ  of  injunc- 
tion does  not 'go  at  all  to  the  original  jurisdiction  of  the 
court ;  and  that  it  is  inserted  where  it  is,  in  aid  of  the  ap- 
pellate or  superintending  jurisdiction  of  the  court.  This 
construction  is  properly  rejected  in  Attorney  General  v. 
Blossom.  The  framers  of  the  constitution  appear  to  have 
well  understood  that,  with  appellate  jurisdiction,  the  court 
took  all  common  law  writs  applicable  to  it-;  and  with  super- 
intending control,  all  common  law  writs  applicable  to  that ; 
and  that,  failing  adequate  common  law  writs,  the  court 
might  well  devise  new  ones,  as  Lord  Coke  tells  us  as  "a  se- 
cret in  law."  Hence  the  constitution  names  no  writ  for  the 
exercise  of  the  appellate  or  superintending  jurisdiction  of 
the  court.  But  the  original  jurisdiction  depends  on  the 
writs  given  and  hence  the  group  of  specific  writs.  The  in- 
junction given,  mean  what  it  may,  appertains  therefore  to 
the  original  jurisdiction  of  the  court. 

Again  we  were  told  that  the  writ  of  injunction  was  in- 
serted in  the  class  of  original  writs  ex  abundanti  cauiela,, 
where  it  does  not  fit,  where  it  performs  no  office,  where  it 
stands  mere  surplusage,  signifying  nothing,  nudum  ver- 
~bum.  We  might  sympathize  with  this  way  out  of  the  diffi- 


277  Attorney  General  u.  Railroad  Cos. 

culty,  but  we  cannot  accept  it.  "We  cannot  so  deal  with  the 
charter  of  this  court  We  cannot  so  dispose  of  a  juris- 
dictional  word.  Even  in  ordinary  phrases,  in  an  ordi- 
nary statute,  dealing  with  an  ordinary  subject,  verba  ali- 
quid  operari  debent,  cum  effectu  sunt  accipienda.  And 
surely  we  cannot,  in  the  constitution  which  creates  the 
court,  reject  as  superabundant  and  unmeaning  an  inde- 
pendent, jurisdictional  word,  manifestly  inserted  for  the 
purpose  of  imposing  a  distinct  duty  on  the  court,  only  be- 
cause we  find  it  difficult  to  apply  it  We  must  hold  that  the 
grant  of  the  writ  had  a  definite  purpose.  This  is  proved  by 
the  independent  use  of  the  word,  rarely  appearing  in  such 
a  grant  of  jurisdiction.  We  may  say  that  we  have  found  it 
difficult  to  define  the  purpose ;  but  if  we  should  find  it  im- 
possible to  interpret  the  organic  law  of  the  court,  we  might 
not  unjustly  be  held  to  confess  our  unfitness  for  this  place. 

Receiving  from  the  bar  no  solution  of  the  difficulty  which 
we  could  accept,  we  have  patiently  considered  it,  seeking 
light  from  the  constitutional  grant  of  jurisdiction  itself, 
from  the  previous  discussions  of  this  court  and  from  the 
discussions  of  other  courts  on  kindred  subjects;  steadfast 
to  accept  or  reject  jurisdiction  of  these  causes,  as  our  duty 
might  be;  and  as  far  as  we  should  be  able,  and  as  far  as 
might  be  necessary  to  our  decision,  to  ascertain  and  define 
the  jurisdiction  in  question  for  the  future  guidance  of  the 
court  and  the  profession,  until  our  construction  should  be 
modified  or  changed  by  our  successors. 

All  the  other  writs  of  the  group  are  common  law  writs. 
The  writ  of  injunction,  when  the  constitution  was  adopted, 
was  exclusively  an  equitable  writ,  used  only  by  courts  of 
chancery.  As  such  it  was  given  to  this  court,  implying 
and  carrying  with  it  equitable  jurisdiction  to  employ  it 
It  is  therefore  plain  that  the  original  juridiction  of  this 


Opinions  of  Chief  Justice  Ryan.  278 

court  is  both  legal  and  equitable,  within  certain  limits; 
legal  for  the  use  of  the  common  law  writs;  equitable  for 
the  use  of  the  chancery  writ.  The  use  of  the  former 
must  be  according  to  the  course  of  common  law  courts. 
The  use  of  the  latter,  according  to  the  course  of  courts  of 
equity;  in  each  case,  subject  to  statutory  modifications  of 
the  practice,  which  do  not  impair  the  jurisdiction  granted. 
The  common-law  writs,  as  already  observed,  imply  and  de- 
fine the  jurisdiction  appurtenant  to  them,  as  jurisdictional 
writs.  It  is  otherwise  with  the  writ  of  injunction.  Equity 
has  no  jurisdictional  writs.  By  the  course  of  courts 
of  equity,  the  jurisdiction  must  precede  the  writ.  And 
though  the  writ  is  the  end  of  the  equitable  jurisdiction  im- 
plied, the  scope  of  the  jurisdiction  must  be  sought  mainly 
outside  of  the  writ  itself.  It  can  issue  only  after  bill  or 
information  filed.  And  the  question  still  remains,  what 
is  the  original  equitable  jurisdiction  conferred  on  the  court, 
of  bills  or  informations,  dependent  on  the  use  of  the  writ. 

The  grant  of  original  jurisdiction  is  one  entire  thing, 
given  in  one  general  policy,  for  one  general  purpose,  though 
it  may  have  many  objects  and  many  modes  of  execution. 
So  it  is  of  the  appellate  power.  So  it  is  of  the  superintend- 
ing control.  There  are  three  independent  and  distinct 
grants  of  jurisdiction,  each  compact  and  congruous  in  it- 
self ;  each  a  uniform  group  of  analogous  remedies,  though 
to  be  exercised  in  several  ways,  by  several  writs,  in  legal 
and  equitable  proceedings,  on  many  objects,  in  great  vari- 
ety of  detail.  The  constitution  wisely,  almost  necessarily, 
stopped  with  the  general  grants  of  jurisdiction,  carefully 
distinguished,  and  left  details  to  practice  and  experience. 

The  grant  is  to  the  supreme  court  of  the  state,  in  the  full 
significance  of  that  term  given  in  Attorney  General  v.  Blos- 
som; designed  to  have  a  general  judicial  oversight  of  the 


Attorney  General  v.  Railroad  Cos. 

state  in  all  its  interests,  public  and  private.  To  this  court, 
as  such,  are  given  general  appellate  jurisdiction  and  super- 
intending control  over  all  other  courts  throughout  the  state, 
because  these  are  essential  to  the  judicial  supremacy  of  the 
court  in  all  ordinary  litigation;  and  original  jurisdiction 
of  certain  writs,  "because  they  are  designed  for  the  very 
purpose  of  protecting  the  sovereignty  and  its  ordained  of- 
fices from  invasion  or  intrusion,  and  also  to  nerve  its  arm  to 
protect  its  citizens  in  their  liberties,  and  to  guard  its  pre- 
rogatives and  franchises  against  usurpation."  This  is  the 
language  of  the  court  in  Attorney  General  v.  Blossom, 
which  we  adopt  and  approve  as  applicable  to  the  question 
before  us.  And  it  tends  to  show,  as  the  whole  opinion  in 
that  case  shows,  that  the  three  grants  of  jurisdiction  pro- 
ceed on  one  policy ;  appellate  jurisdiction  to  decide  finally 
all  ordinary  litigation;  superintending  jurisdiction  over 
all  other  courts  to  control  the  course  of  ordinary  litigation 
in  them ;  and,  outside  of  these,  original  jurisdiction  of  cer- 
tain proceedings  at  law  and  in  equity,  to  protect  the  general 
interests  and  welfare  of  the  state  and  its  people,  which  it 
would  not  do  (to  quote  Smith,  J.,  again)  to  dissipate  and 
scatter  among  many  inferior  courts.  Here  are  three  juris- 
dictions, but  one  policy:  to  make  this  court  indeed  a  su- 
preme judicial  tribunal  over  the  whole  state ;  a  court  of  last 
resort  on  all  judicial  questions  under  the  constitution  and 
laws  of  the  state ;  a  court  of  first  resort  on  all  judicial  ques- 
tions affecting  the  sovereignty  of  the  state,  its  franchises 
or  prerogatives,  or  the  liberties  of  its  people.  Attorney 
General  v.  Blossom. 

The  other  courts  may,  indeed,  adjudicate  public  as  well 
as  private  questions ;  and  the  appellate  and  superintending 
jurisdiction  of  this  court  may  therefore  reach  public  as  well 
as  private  interests.  But  the  framers  of  the  constitution, 


Opinions  of  Chief  Justice  Ryan.  280 

for  greater  security,  added  to  these  original  jurisdiction 
over  great  public  interests,  for  reasons  already  assigned. 
In  a  government  like  ours,  public  rights  of  the  state  and 
private  rights  of  citizens  often  meet,  and  may  well  be  in- 
volved in  a  single  litigation.  So  it  may  be  in  the  exercise 
of  the  original  jurisdiction  of  the  court.  But  it  is  safe  to 
say  that  the  constitution  is  content  to  intrust  purely  private 
rights  to  the  appellate  and  superintending  jurisdictions 
given,  and  to  have  granted  the  original  jurisdiction  of  this 
court  for  the  better  and  prompter  and  more  authoritative 
protection  of  public  interests.  This  is  its  primary  and  con- 
trolling object  and  character. 

This  is  very  plainly  implied  by  the  grant  of  the  writs  of 
habeas  corpus,  mandamus,  quo  warranto  and  certiorari, 
as  is  well  reasoned  in  Attorney  General  v.  Blossom.  And, 
plainly  recognizing  the  intention  of  the  constitution  to  vest 
in  this  court  one  jurisdiction,  by  several  writs,  to  be  put 
to  several  uses,  for  one  consistent,  congruous,  harmonious 
purpose,  we  must  look  at  the  writ  of  injunction  in  the 
light  of  that  purpose,  and  seek  its  use  in  the  kindred  uses 
of  the  other  writs  associated  with  it.  Noscitur  a  sociis  is 
an  old  and  safe  rule  of  construction,  said  to  have  originated 
with  as  great  a  lawyer  and  judge  as  Lord  Hale,  peculiarly 
applicable  to  this  consideration.  Lord  Bacon  gives  the 
same  rule  in  a  more  detailed  form,  more  emphatic  here. 
Copulatio  verborum  indicat  acceptationem  in  eodem  sensu. 
Here  are  several  writs  of  defined  and  certain  application 
classed  with  one  of  vague  import.  We  are  to  be  guided  in 
the  application  of  the  uncertain,  by  its  certain  associates. 
The  joinder  of  the  doubtful  writ  with  the  defined  writs 
operates  to  interpret  and  restrict  its  use,  so  as  to  be  accepted 
in  the  sense  of  its  associates ;  so  that  it  and  they  may  har- 
monize in  their  use,  for  the  common  purpose  for  which  it 


281  Attorney  General  v.  Railroad  Cos. 

is  manifest  that  they  were  all  given.  And  thus,  in  this  use 
and  for  this  purpose,  the  constitution  puts  the  writ  of  in- 
junction to  prerogative  uses  and  makes  it  a  quasi  preroga- 
tive writ. 

There  is  the  less  difficulty  in  reaching  this  construction, 
and  giving  definite  meaning  to  the  jurisdiction  of  injunc- 
tion, because  of  the  very  contrast  between  this  writ  and 
mandamus.  The  latter  commands.  The  former  forbids. 
Where  there  is  nonfeasance,  mandamus  compels  duty. 
Where  there  is  malfeasance,  injunction  restrains  wrong. 
And  so  near  are  the  objects  of  the  two  writs,  that  there  is 
sometimes  doubt  which  is  the  proper  one;  injunction  is 
frequently  mandatory,  and  mandamus  sometimes  operates 
restraint.  In  these  very  motions  it  was  argued  on  one  side 
that  the  remedy  of  the  state  is  by  mandamus,  on  the  other 
that  it  is  by  injunction.  And  it  is  very  safe  to  assume  that 
the  constitution  gives  injunction  to  restrain  excess,  in  the 
same  class  of  cases  that  it  gives  mandamus  to  supply  defect ; 
the  use  of  the  one  writ  or  the  other  in  each  case  turning 
solely  on  the  accident  of  over-action  or  shortcoming  of  the 
defendant.  And  it  may  be  that  where  defect  and  excess 
meet  in  a  single  case,  the  court  might  meet  both,  in  its  dis- 
cretion, by  one  of  the  writs,  without  being  driven  to  send 
out  both,  tied  together  with  red  tape,  for  a  single  purpose. 

This  view  excludes  jurisdiction  of  injunction  in  private 
suits,  between  private  parties,  proceeding  on  private  right 
or  wrong.  In  excluding  them,  we  feel  quite  assured  that 
we  are  only  giving  effect  to  the  very  purpose  and  limit  of 
the  constitution  in  the  grant  of  jurisdiction.  And  we  were 
aided  in  arriving  at  this  conclusion,  by  decisions  of  the 
supreme  court  of  Missouri,  in  somewhat  analogous  cases, 
excluding  original  jurisdiction  of  causes  of  merely  private 
interest.  State  v.  Stewart,  32  Mo.  379 ;  State  v.  Lawrence, 


Opinions  of  Chief  Justice  Ryan.  282 

38  id.  535 ;  Foster  v.  State,  41  id.  61 ;  Vail  v.  Dinning, 
44  id.  210;  State  v.  Vail,  53  id.  97.  In  our  view,  the 
jurisdiction  of  the  writ  is  of  a  quasi  prerogative  writ. 
The  prerogative  writs  proper  can  issue  only  at  the  suit  of 
the  state  or  the  attorney  general  in  the  right  of  the  state ;; 
and  so  it  must  be  with  the  writ  of  injunction,  in  its  use 
as  a  quasi  prerogative  writ.  All  may  go  on  the  relation 
of  a  private  person,  and  may  involve  private  right.  It  is 
(the  duty  of  the  court  to  confine  the  exercise  of  its  orig- 
inal jurisdiction  to  questions  publici  juris.  And  hereafter 
the  court  will  require  all  classes  of  cases,  as  it  has  hitherto 
done  some,  in  which  it  is  sought  to  put  its  original  juris- 
diction in  motion,  to  proceed  upon  leave  first  obtained, 
upon  a  prima  facie  showing  that  the  case  is  one  of  which  it 
is  proper  for  the  court  to  take  cognizance. 

Although  the  writ  of  injunction  was  at  no  time  properly 
a  jurisdictional  writ,  and  it  has  long  been  held  to  be  a  judi- 
cial writ  only,  used  to  give  effect  to  the  general  jurisdiction 
of  courts  of  equity,  yet  in  the  early  history  of  the  English 
Chancery,  the  use  of  the  writ  rested  on  a  jurisdiction  of  its 
own,  borrowed  from  the  Roman  law  by  the  churchmen  who 
first  sat  in  that  court.  1  Spence,  668.  And  this  early  use 
of  the  writ  as  a  quasi  jurisdictional  writ  has  aided  us  in 
giving  to  it  the  construction  and  use  in  the  constitution, 
which  we  adopt. 

We  ought,  perhaps,  earlier  in  the  discussion,  to  have  in- 
dicated another  section  of  article  VII  of  the  constitution, 
which  has  aided  our  conclusion.  Section  8  gives  jurisdic- 
tion to  the  circuit  courts,  original  in  all  matters,  civil  and 
criminal,  within  the  state,  not  excepted  in  the  constitution 
or  thereafter  prohibited  by  law,  and  appellate  from  all  in- 
ferior courts  and  tribunals,  and  supervising  control  over 
the  same,  and  also  power  to  issue  writs  of  habeas  corpus,. 


Attorney  General  v.  Railroad  Cos. 

mandamus,  injunction,  quo  warranto,  certiorari  and  all 
other  writs  necessary  to  carry  into  effect  their  judgments, 
etc.,  and  a  general  control  over  inferior  courts  and  jurisdic- 
tions. A  great  jurisdiction,  comprehending,  as  C.  J.  Stow 
remarked,  in  Putman  v.  Sweet,  the  united  powers  of  the 
English  courts  of  the  King's  Bench,  Common  Pleas,  Ex- 
chequer and  Chancery.  The  same  writs  are  granted  to 
those  courts  as  to  this.  It  is  impossible  for  a  lawyer  to 
suppose  that  they  are  granted  in  the  same  sense  and  with 
the  same  measure  of  jurisdiction,  to  this  court  as  to  those 
courts.  Such  a  proposition  would  shock  the  legal  sense  of 
any  professional  man.  And  the  distinction  is  to  be  looked 
for,  and  is  readily  found,  in  the  general  constitution  and 
functions  of  those  courts  and  of  this.  The  writs  are  given 
to  the  circuit  courts  as  an  appurtenance  to  their  general 
original  jurisdiction ;  to  this  court,  for  jurisdiction.  Those 
courts  take  the  writs  with  unlimited  original  jurisdiction 
of  them,  because  they  have  otherwise  general  original  jur- 
isdiction. Other  original  jurisdiction  is  prohibited  to  this 
court,  and  the  jurisdiction  given  by  the  writs  is  essentially 
a  limited  one.  Those  courts  take  the  prerogative  writs  as 
part  of  their  general  jurisdiction,  with  power  to  put  them 
to  all  proper  uses.  This  court  takes  the  prerogative  writs 
for  prerogative  jurisdiction,  with  power  to  put  them  only 
to  prerogative  uses  proper.  The  circuit  courts  take  the  writ 
of  injunction  with  all  the  powers  and  uses  of  the  English 
Court  of  Chancery.  This  court  takes  it  as  an  integral  ele- 
ment of  its  jurisdiction  of  prerogative  writs.  And  it  would 
be  a  rude  and  criminal  emasculation  of  the  judicial  charter 
of  the  state,  to  disfranchise  this  court  of  all  jurisdiction  or 
use  of  injunction,  as  it  would  be  a  wild  and  reckless  delu- 
sion, undiscerning  the  symmetrical  distribution  of  judicial 
powers  in  the  constitution,  to  attribute  to  this  court  the 


•Opinions  of  Chief  Justice  Ryan.  284 

same  jurisdiction  and  uses  of  the  writ  which  the  circuit 
courts  have. 

And  so  the  difficulty  which  seemed  so  great,  becomes  so 
little,  and  is  overcome,  as  difficulties  often  are,  by  being 
directly  met  and  carefully  examined.  And  thus  we  find 
that  Smith,  J.,  was  more  apparently  than  really  inaccurate 
in  Attorney  General  v.  Blossom, -when  he  classed  injunction 
with  the  other  writs  given,  and  called  the  whole  group  pre- 
rogative and  original  writs.  For,  in  our  view  of  its  use, 
the  injunction  given  to  this  court  seems  to  become  a  quasi 
prerogative  writ,  and  founds  jurisdiction  as  if  it  were  an 
original  writ.  It  is  certainly  competent  for  the  constitution 
to  give  new  writs,  or  to  put  old  writs  to  new  uses ;  to  make 
any  writ,  by  the  use  to  which  it  puts  it,  prerogative  or  orig- 
inal; and  to  found  jurisdiction  on  any  writ,  as  in  case  of 
a  prerogative  or  original  writ.  And  this  it  appears  to 
have  done,  in  effect,  with  the  injunction  which  it  gives  to 
this  court. 

We  therefore  hold  that  this  court  has  original  jurisdic- 
tion of  an  information  on  behalf  of  the  state  in  the  nature 
of  an  injunction  bill  in  chancery,  in  all  cases  coming  within 
the  scope  of  the  original  jurisdiction  conferred  on  this 
court  by  the  third  clause  of  section  3,  article  YII  of  the 
constitution,  in  which  injunction  is  the  appropriate  reme- 
dial writ. 

The  original  jurisdiction  of  the  court  by  way  of  injunc- 
tion being  thus  settled,  no  question  was  made  on  the  argu- 
ment, and  it  is  not  perceived  how  any  could  well  be,  of  our 
jurisdiction  to  entertain  the  informations  in  these  causes, 
if  they  make  a  case  for  equitable  cognizance. 

II.  But  equitable  jurisdiction  of  such  informations  was 
-denied.  It  was  argued  that  courts  of  equity  have  no  juris- 


285  Attorney  General  v.  Railroad  Cos. 

diction,  at  the  suit  of  the  attorney  general,  to  enjoin  usur- 
pation, excess  or  abuse  of  corporate  franchises. 

This  question  was  argued  very  ably  and  at  large,  and  has 
been  carefully  considered,  although  we  have  had  no  diffi- 
culty in  coming  to  the  conclusion  that  courts  of  equity  have 
such  jurisdiction,  and  that  it  is  a  very  beneficial  jurisdic- 
tion, almost  essential  to  public  order  and  welfare. 

It  was  hardly  denied  that  the  English  court  of  chancery 
entertains  jurisdiction  in  such  cases;  and  indeed  the  Eng- 
lish books  leave  little  room  for  such  a  denial. 

But  it  was  said  that,  in  England,  the  attorney  general 
has  a  right  to  elect  his  forum,  legal  or  equitable.  And  it 
is  so  said  in  some  of  the  cases.  Attorney  General  v.  Mayor 
of  Galway,  1  Molloy,  103.  But  it  appears  to  us  that  this 
logically  follows,  everywhere,  upon  equitable  jurisdiction 
to  restrain  corporate  violations  of  charters  or  other  public 
law.  In  such  cases  there  is  always  a  remedy  at  law.  The 
attorney  general  may  proceed  at  law  by  quo  warranto  to 
forfeit  the  charter  of  the  offending  corporation;  and,  if 
there  be  a  penalty,  as  often  happens,  he  may  sue  for  it  at 
law.  And  the  concurrent  remedy  by  injunction  inevitably 
gives  the  election  imputed  to  the  attorney  general.  And 
we  see  no  reason  why  the  attorney  general  here  has  not  the 
same  election.  To  deny  him  such  an  election  is  only  an- 
other way  of  denying  the  jurisdiction. 

The  equitable  jurisdiction  precludes  the  objection  that 
there  is  an  adequate  remedy  at  law.  It  admits  the  remedy 
at  law,  but  administers  its  own  remedy  in  preference,  when 
the  state  seeks  it  in  preference.  It  seems  to  proceed  on  the 
presumption  that  it  may  better  serve  the  public  interest  to 
restrain  a  corporation,  than  to  punish  it  by  penal  remedies 
or  to  forfeit  its  charter;  and  that,  in  that  view,  the  proper 


Opinions  of  Chief  Justice  Ryan.  286 

officers  of  the  state  should  have  an  election  of  remedies. 
And  we  may  as  well  say  in  this  connection,  that  the  juris- 
diction to  entertain  these  informations  is  wholly  independ- 
ent of  an  adequate  remedy  at  law;  and  that,  were  that 
otherwise,  we  could  not  consider  the  informations  in  the 
nature  of  a  quo  warranto,  pending  in  this  court  against 
these  defendants,  as  an  adequate  remedy  at  law,  which 
could  be  a  substitute  for  a1  bar  to  the  injunction  asked. 
Judgments  of  ouster  on  those  informations  might  not  only 
be  of  far  more  grave  consequence  to  the  defendants,  but 
might  be  far  less  beneficial  to  the  state,  and  less  accordant 
with  its  policy,  and  altogether  less  equitable  and  proper, 
than  the  injunctions  sought  to  restrain  the  defendants 
from  doing  what  is  alleged  to  work  a  forfeiture  of  their 
charters.  Doubtless  the  court  has  power,  in  granting  in- 
junctions, to  prescribe  conditions  controlling  the  action  of 
the  attorney  general  in  the  quo  warranto  cases.  But  if 
this  court  can  enjoin,  it  can  do  so  without  regard  to  any 
remedy  at  law ;  and  the  attorney  general  has  a  right  of  elec- 
tion to  resort  to  the  more  lenient  remedy  of  injunction,  in 
preference  to  the  harsher  and  more  dangerous  experiment 
of  forfeiture. 

It  was  further  urged  for  the  defendants,  against  the  au- 
thority of  the  English  cases,  that  the  jurisdiction  of  the 
English  chancery  in  such  cases,  rests  largely  on  recent  acts 
of  parliament.  And  we  are  referred,  in  support  of  that 
position,  to  the  Railway  and  Canal  Traffic  Act  of  1854, 
and  to  the  Common  Law  Procedure  Act  of  the  same  year 
(17  and  18  Viet  ch.  31  and  ch.  125).  We  have  carefully 
examined  these  statutes,  and  Mr.  Joyce's  comments  upon 
them.  We  find  that  the  former  of  them  enlarged  the  pow- 
ers of  some  of  the  common-law  courts,  and  gave  them  ju- 
risdiction of  certain  summary  proceedings,  and  the  equi- 


287  Attorney  General  v.  Railroad  Cos. 

table  writ  of  injunction  for  certain  purposes,  against  rail- 
way and  canal  companies.  The  second  of  these  acts  gives 
some  equitable  powers,  and  the  writ  of  injunction,  in  cer- 
tain cases,  to  courts  of  common  law.  But  we  fail  to  dis- 
cover that  either  of  these  statutes  adds  anything  to  the  ju- 
risdiction of  courts  of  equity.  In  this  connection  we  were 
led  also  to  examine  the  Railway  Act  of  1840  (3  and 
4  Viet.  ch.  97),  and  the  Railway  Act  of  1844  (7  and  8 
Viet  ch.  85) .  Section  11  of  the  former  of  these  two  latter 
acts,  and  section  17  of  the  latter  of  them,  the  second  of  these 
sections  being  a  substitute  for  the  first,  give  certain  author- 
ity to  the  Board  of  Trade  to  require  the  attorney  general 
to  proceed  against  railway  companies  for  violation  of  legal 
duty ;  and,  upon  such  requisition,  make  it  obligatory  on  the 
attorney  general  to  take  such  proceedings.  While  the  lat- 
ter of  these  sections  was  in  force,  the  attorney  general  filed 
an  information  in  the  court  of  chancery  against  a  railway 
company  for  an  injunction  against  acts  within  the  letter 
and  spirit  of  the  section,  without  any  requisition  of  the 
Board  of  Trade.  On  application  for  injunction,  the  vice 
chancellor  says : 

"It  is,  however,  contended  that  as  the  act  of  7  and  8 
Viet  ch.  85,  sections  16,  17,  prescribes  a  particular  rem- 
edy in  such  a  case,  the  attorney  general  cannot  take  pro- 
ceedings otherwise  than  in  accordance  with  that  provision. 

"This  objection  in  truth  involves  the  contention  that 
this  court  has  no  jurisdiction  to  entertain  the  suit  by  the 
attorney  general,  unless  it  is  instituted  under  the  circum- 
stances mentioned  in  those  sections. 

"The  effect  of  those  sections  is  not  to  take  away  the  right 
of  the  attorney  general  to  file  such  an  information  at  his 
discretion,  although  there  is  no  certificate  of  the  board  of 
trade,  or  the  jurisdiction  of  the  court  to  entertain  such  a 


Opinions  of  Chief  Justice  Ryan.  288 

suit.  The  only  effect  is,  that  if  the  board  of  trade  has  cer- 
tified to  the  attorney  general,  he  is  bound  to  act,  and  com- 
pel the  railway  company  to  abstain  from  doing  what  is  in 
violation  of  the  law.  In  that  particular  case  he  can  exer- 
cise no  discretion ;  he  must  sue." 

The  information  was  sustained  and  the  injunction  is- 
sued. Attorney  General  v.  Great  Western  Railway  Co.,  1 
Drewry  &  S.  154. 

We  have  been  unable  to  find  any  English  statute  enlarg- 
ing the  jurisdiction  of  the  court  of  chancery  in  such  cases ; 
and  we  find  all  the  English  cases  proceeding  without  ref- 
erence to  statutory  jurisdiction.  We  find  no  room  for 
doubt  that  this  jurisdiction  of  English  courts  of  equity  is 
independent  of  all  authority  by  statute,  and  has  long  been 
as  well  recognized  as  any  ground  of  equitable  jurisdiction 
whatever.  And  these  views  are  fully  sustained  by  the  case 
just  quoted. 

We  cannot  state  the  rule  better  than  by  taking  it  from 
the  excellent  work  of  Mr.  Brice,  so  recently  given  to  the 
profession. 

"Under  many  circumstances,  the  court  of  chancery  has, 
on  public  grounds,  jurisdiction  to  prevent  corporations 
acting  in  various  ways,  or  contrary  to  the  intent  for  which 
they  have  been  created.  The  public,  however,  must  be 
represented  in  all  applications  relating  to  such  matters,  and 
this  is  done  by  the  intervention  of  the  attorney  general.  No 
single  person,  whether  a  member  of  the  corporation  in 
question  or  not,  is  able  on  his  own  account,  and  of  his  own 
motion,  to  call  upon  the  court  to  interfere  for  his  special 
protection.  The  wrong  he  complains  of  is  not  confined  to 
himself;  no  right  or  privilege  peculiar  to  himself  is  vio- 
lated; the  wrongs  inflicted  and  the  rights  invaded  affect 
the  public,  and  the  public,  consequently,  must  be  a  party 


Attorney  General  v.  Railroad  Cos. 

to  the  proceedings.  The  occasions  upon  which  the  court 
will  exercise  jurisdiction  to  restrain  the  doing  of  acts  of 
this  kind,  seem  to  fall  into  the  three  following  heads:" 
The  author  then  proceeds  to  give  the  three  heads  of  juris- 
diction at  large,  which  are  thus  classed  in  his  own  words : 
"1st.  When  a  corporation  is  abusing  powers  given  for  pub- 
lic purposes ;  2d,  or  is  committing  a  breach  of  trust ;  3d,  or 
is  acting  adversely  to  public  policy."  We  copy  this  last 
in  full: 

"When  any  corporation  is  doing  acts  detrimental  to  the 
public  welfare,  or  hostile  to  public  policy.  The  right  of 
the  attorney  general  to  interfere  on  these  grounds  was  fully 
established  in  Attorney  General  v.  Great  North.  Kailway 
Company,  where  the  defendants  had  engaged  in  an  illegal 
trade  in  coals.  It  was  objected  that  it  was  not  competent 
for  him  to  file  an  information.  But  Kindersley,  V.  0., 
said :  'On  this  point  I  entertain  no  doubt  whatever.  When- 
ever the  interests  of  the  public  are  damnified  by  a  com- 
pany established  for  any  particular  purpose  by  act  of  parlia- 
ment, acting  illegally  and  in  contravention  of  the  powers 
conferred  upon  it,  I  conceive  it  is  the  function  of  the  at- 
torney general  to  protect  the  interests  of  the  public  by  an 
information;  and  that,  when  in  the  case  of  an  injury  to 
private  interests,  it  would  be  competent  for  an  individual 
to  apply  for  an  injunction  to  restrain  a  company  from 
using  its  powers  for  purposes  not  warranted  by  the  act  cre- 
ating it,  it  is  competent  for  the  attorney  general,  in  cases 
of  injury  to  public  interests  from  such  a  cause,  to  file  an  in- 
formation for  an  injunction.' ' 

The  writer  then  proceeds :  "The  above  being  the  grounds 
of  the  jurisdiction  of  the  court  of  chancery  in  this  behalf, 
the  next  point  is,  when  can  the  attorney  general  direct  pro- 
ceedings on  behalf  of  the  public  ?    He  may  do  so  whenever 
19 


Opinions  of  Chief  Justice  Ryan.  290 

public  interests  have  been  damnified,  or  will  manifestly  be 
damnified,  in  the  result,  by  transactions  which  axe  now  tak- 
ing place.  And  it  would  seem  from  the  judgment  in  Ware 
v.  Eegents  Canal  Company  (3  De  Gex  &  J.  212,  228),  that 
he  may  do  so  when  a  corporation  is  going  beyond  its  spe- 
cial powers,  even  though  no  definite  injury  has  been  done 
or  is  likely  to  be  done  to  the  public.  Where  there  has  been 
an  excess  of  the  powers  given  by  an  act  of  parliament,  but 
no  injury  has  been  occasioned  to  any  individual,  or  is  im- 
minent and  of  irreparable  consequence,  I  apprehend  that  no 
one  but  the  attorney  general,  on  behalf  of  the  public,  has  a 
right  to  apply  to  this  court  to  check  the  exorbitance  of  the 
party  in  the  exercise  of  the  powers  confided  to  him  by  the 
legislature."  Brice's  Ultra  Vires,  506-509. 

The  custom  of  courts  of  equity  to  interfere  in  such  cases, 
at  the  suit  of  private  parties,  for  private  injuries,  is  quite 
old.  It  seems  to  have  grown  up  out  of  the  ancient  juris- 
diction to  restrain  waste  and  nuisance.  We  shall  not  at- 
tempt to  trace  it.  It  is  recognized  as  an  established  juris- 
diction by  Lord  Hardwicke  in  1752  (Fishmonger's  Co.  v. 
East  India  Co.,  1  Dickens,  163)  ;  and  particularly  as  ap- 
plied to  corporations  exceeding  or  abusing  their  franchises, 
by  Lord  Eldon  in  1815.  Agar  v.  Regent's  Canal  Co., 
Cooper,  77.  In  more  recent  times,  as  corporations  have 
grown  in  number  and  power,  cases  applying  this  jurisdic- 
tion to  them  are  very  numerous.  We  cite  a  few  at  random : 
River  Dun  ET.  Co.  v.  North  Mid.  Railway  Company,  1 
English  Railway  Cases,  135 ;  Blackburne  v.  Glamorgan 
Canal  Navigation,  1  Mylne  &  K.  154;  Coats  v.  Clarence 
Railway  Company,  1  Russell  &  M.  181 ;  Dawson  v.  Paver, 
.5  Hare.  415 ;  Broadbent  v.  Imperial  Gas  Company,  7  De 
«Gex,  M.  &  G.  437;  Ware  v.  Regent's  Canal  Company,  3 


291  Attorney  General  v.  Railroad  Cos. 

De  Gex  &  J.  212 ;  London  &  Brighton  Railway  Company 
v.  Cooper,  2  English  Railway  Cases,  312. 

The  general  grounds  of  jurisdiction,  in  favor  of  private 
persons  as  well  as  the  public,  are  stated  by  Lord  Eldon  in 
Blackmore  v.  Glamorgan  Canal  Navigation.  "When  I 
look  upon  these  acts  of  parliament,  I  regard  them  all  in  the 
light  of  contracts  made  by  the  legislature,  on  behalf  of 
every  person  interested  in  anything  to  be  done  under  them ; 
and  I  have  no  hesitation  in  asserting  that,  unless  that  prin- 
ciple is  applied  in  construing  statutes  of  this  description, 
they  become  instruments  of  greater  oppression  than  any- 
thing in  the  whole  system  of  administration  under  our  con- 
stitution. Such  acts  of  parliament  have  now  become  ex- 
tremely numerous;  and,  from  their  number  and  operation, 
they  affect  so  many  individuals,  that  I  apprehend  those 
who  come  for  them  to  parliament,  do,  in  effect,  undertake 
that  they  shall  do  and  submit  to  whatever  the  legislature 
empowers  and  compels  them  to  do ;  and  that  they  shall  do 
nothing  else;  that  they  shall  do  and  forbear  all  that  they 
are  required  to  do  and  forbear,  as  well  with  reference  to 
the  interests  of  the  public,  as  with  reference  to  the  inter- 
ests of  individuals.  It  is  upon  this  ground  that  applica- 
tions are  frequently  made,"  etc. 

And  the  jurisdiction  is  now  clearly  denned  as  having 
two  branches :  one  on  behalf  of  the  state,  for  public  wrong, 
and  the  other  on  behalf  of  private  persons,  for  private 
wrong,  arising  from  an  excess  or  abuse  of  corporate  fran- 
chise. Eelief  against  public  wrong  is  confined  to  informa- 
tions by  the  attorney  general.  Ware  v.  Kegent's  Canal 
Company,  3  De  Gex  &  J.  212 ;  Brown  v.  Monmouth  Rail- 
way and  Canal  Company,  13  Beavan,  32.  And  it  has  been 
held,  on  the  other  hand,  that  the  attorney  general  can- 


Opinions  of  Chief  Justice  Ryon.  292 

not  maintain  information  on  the  ground  of  mere  private 
wrong.  Attorney  General  v.  Birmingham  &  0.  Railway 
Company,  4  De  Gex  &  S.  190,  and  3  Ma'cNaghten  &  G. 
453.  Though  doubt  is  thrown  upon  this  point  by  the  later 
case  of  Ware  v.  Regent's  Canal  Company,  3  De  Gex  &  J. 
212. 

Be  that  as  it  may,  the  authority  of  the  English  chan- 
cery to  restrain  corporate  violations  injuring  or  tending  to 
injure  public  welfare,  or  to  defeat  public  policy,  at  the  suit 
of  the  attorney  general,  as  stated  by  Mr.  Brice,  is  now  be- 
yond controversy.  Attorney  General  v.  Johnson,  2  Wilson, 
87;  Attorney  General  v.  Forbes,  2  Mylne  &  C.  123;  At- 
torney General  v.  Eastern  Counties  Railway  Company,  3 
English  Railway  Cases,  337 ;  Attorney  General  v.  Great 
Nor.  Railway  Company,  4  De  Gex  &  S.,  75 ;  Attorney  Gen- 
eral v.  Sheffield  Gas  Co.,  3  De  Gex,  M.  &  G.,  304;  Attor- 
ney General  v.  Great  North.  Railway  Company,  1  Drewry 
&  S.  154;  Attorney  General  v.  Mid.  Kent  Railway  Com- 
pany, 3  Chancery  Appeal  Cases,  100 ;  Attorney  General 
v.  Cambridge  Gas  Co.,  4  Chancery  Appeal  Cases,  7. 

The  grounds  on  which  this  jurisdiction  rests  are  ancient ; 
but  the  extent  of  its  application  has  grown  rapidly  of  late 
years,  until  a  comparatively  obscure  and  insignificant  ju- 
risdiction has  become  one  of  great  magnitude  and  public 
import.  The  modern  exercise  of  this  jurisdiction  has  kept 
pace  with  the  multiplication  of  great  corporations  in  Eng- 
land. The  cause  may  be  found  in  the  language  of  Lord 
Eldon  already  quoted,  and  the  motive,  in  the  language  of 
Lord  Cottenham  three  times  repeated:  "I  have  before 
taken  occasion  to  observe  that  I  thought  it  the  duty  of  this 
court  to  adapt  its  practice  and  course  of  proceedings,  as  far 
as  possible,  to  the  existing  state  of  society,  and  to  apply  its 
jurisdiction  to  all  those  new  cases  which,  from  the  progress 


293  Attorney  General  v.  Railroad  Cos. 

daily  making  in  the  affairs  of  men,  must  continually  arise ; 
and  not,  from  too  strict  adherence  to  forms  and  rules  es- 
tablished under  very  different  circumstances,  decline  to 
administer  justice  and  enforce  rights  for  which  there  is  no 
other  remedy."  1  Mylne  &  C.  559 ;  4  id.  141,  635. 

In  our  day  the  common  law  has  encountered  in  England, 
as  in  this  country,  a  new  power,  unknown  to  its  founders, 
practically  too  strong  for  its  ordinary  private  remedies. 
The  growth  of  great  corporations,  centers  of  vast  wealth 
and  power,  new  and  potent  elements  of  social  influence, 
overrunning  the  country  with  their  works  and  their  traffic 
throughout  all  England,  has  been  marvelous  during  the 
last  half  century.  It  is  very  certain  that  the  country  has 
gained  largely  by  them  in  commerce  and  development.  But 
such  aggregations  of  capital  and  power,  outside  of  public 
control,  are  dangerous  to  public  and  private  right ;  and  are 
practically  above  many  public  restraints  of  the  common 
law,  and  all  ordinary  remedies  of  the  common  law  for  pri- 
vate wrongs.  Their  influence  is  so  large,  their  capacity  of 
resistance  so  formidable,  their  powers  of  oppression  so  va- 
rious, that  few  private  persons  could  litigate  with  them; 
still  fewer  private  persons  would  litigate  with  them  for  the 
little  rights  or  the  little  wrongs  which  go  so  far  to  make  up 
the  measure  of  average  prosperity  of  life.  It  would  have 
been  a  mockery  of  justice  to  have  left  corporations,  count- 
ing their  capital  by  millions — their  lines  of  railroad  by  hun- 
dreds, and  even  sometimes,  by  thousands  of  miles — their 
servants  by  multitudes — their  customers  by  the  active  mem- 
bers of  society — subject  only  to  the  common  law  liabilities 
and  remedies  which  were  adequate  protection  against  turn- 
pike and  bridge  and  ferry  companies,  in  one  view  of  their 
relations  to  the  public;  and,  in  another  view,  to  the  same 
liabilities  and  remedies  which  were  found  sufficient  for 


Opinions  of  Chief  Justice  Ryan.  294 

common  carriers  who  carried  passengers  by  a  daily  line  of 
stages,  and  goods  by  a  weekly  wagon,  or  both  by  a  few 
coasting  or  inland  craft;  with  capital  and  influence  often 
less  than  those  of  a  prosperous  village  shopkeeper.  The 
common-law  remedies,  sufficient  against  these,  were,  in  a 
great  degree,  impotent  against  the  great  railway  compa- 
nies— always  too  powerful  for  private  right,  often  too  pow- 
erful for  their  own  good.  It  was  in  these  circumstances 
that  the  English  courts  of  equity  applied  their  restraining 
jurisdiction  at  public  or  private  suit,  and  laid  on  these 
great  companies  the  strong  hand  of  equitable  control.  And 
all  England  had  occasion  to  bless  the  courage  and  integrity 
of  her  great  judges,  who  used  so  ably  and  so  freely  and  so 
beneficially  the  equity  writ,  and  held  great  corporations  to 
strict  regard  to  public  and  private  right.  Every  person 
suffering  or  about  to  suffer  their  oppression,  by  a  disre- 
gard of  corporate  duty,  may  have  his  injunction.  When 
their  oppression  becomes  public,  it  is  the  duty  of  the  attor- 
ney general  to  apply  for  the  writ  on  behalf  of  the  public. 
And  in  this  country,  where  the  judicial  tone  is  less  certain, 
it  is  refreshing  to  read  the  bold  and  true  words  of  which 
English  equity  judges  do  not  spare  the  utterance.  One  of 
these  corporations  having  violated  an  injunction,  Y.  C. 
Shadwell  says:  "Considering  then  their  conduct  to  be  at 
once  contumacious  and  otherwise  illegal,  to  be  wrongful 
against  the  plaintiff  individually,  wrongful  against  the 
Queen's  subjects  at  large,  and  of,  I  had  almost  said,  scan- 
dalous example;  whatever  amount  of  inconvenience  may 
be  the  consequence  of  acting  against  the  defendants  on  this 
occasion,  I  think  it  right  to  deal  with  them  according  to 
their  merits.  The  consequence  may  possibly  be  to  stop 
the  railway.  I  answer  again  that  it  ought  to  be  stopped, 
for  it  passes  where  it  does  by  wrong.  The  directors  of  the 


295  Attorney  General  v.  Railroad  Cos. 

company  and  their  agents  cannot,  on  this  motion,  at  pres- 
ent, be  committed  to  prison ;  but  what  can  be,  shall  be  done, 
to  repress  a  daring  invasion  of  public  and  private  rights, 
maintained  in  open  defiance  of  law,  authority  and  order. 
Let  a  sequestration  issue."  Attorney  General  v.  Great 
^"orth.  Eailway  Co.,  4  De  Gex  &  S.  93.  A  great  example, 
of  authority,  in  proper  cases,  for  all  American  judges. 

And  it  is  not  unimportant  to  observe  that  this  broad  Eng- 
lish jurisdiction  was  well  established  and  publicly  recog- 
nized at  the  time  of  the  adoption  of  our  state  constitution. 

It  was,  however,  strenuously  denied  that  it  had  been 
adopted  in  this  country  or  could  be  upheld  by  the  current 
of  American  authorities. 

We  have  not  found  this  jurisdiction  as  directly  and  suc- 
cinctly stated  in  American  treatises  as  in  English,  although 
it  is  fully  recognized  by  the  best  of  our  elementary  writers. 
Judge  Eedfield  says  that  "injunctions  in  courts  of  equity, 
to  restrain  railways  from  exceeding  the  powers  of  their 
charters,  or  committing  irreparable  injury  to  other  persons, 
natural  or  artificial,  have  been  common,  for  a  long  time,  in 
England  and  this  country."  2  Eedfield  on  Eailways,  307. 
Nearly  all  the  chapter  of  his  work  (ch.  39)  from  which 
we  quote,  is  full  of  instruction  on  the  question,  and  directly 
recognizes,  especially  in  the  valuable  notes,  the  same  juris- 
diction of  courts  of  equity  in  this  country,  both  at  the  suit 
of  private  persons  for  private  wrongs  and  of  the  attorney 
general  for  public  wrongs,  as  that  exercised  by  the  Eng- 
lish chancery.  Later  in  the  chapter  he  says  that  the  equi- 
table jurisdiction  by  injunction  goes  upon  the  ground  of 
nuisance.  As,  indeed,  any  intrusion  upon  public  right  is 
in  the  nature  of  pourpresture.  The  ancient  jurisdiction  to 
restrain  nuisance,  is  perhaps  the  most  direct  ground  of  the 
modern  jurisdiction  under  consideration.  And  the  former 


Opinions  of  Chief  Justice  Ryan.  296 

is  fully  asserted  as  an  American  jurisdiction,  as  to  reme- 
dies both  by  private  persons  and  by  the  attorney  general 
for  the  public.  2  Story's  Eq.  sections  920-923. 

The  remedy  by  injunction,  at  the  suit  of  private  parties, 
for  private  wrong,  is  recognized  and  enforced  in  a  great 
number  of  American  cases.  Gardner  v.  Newburgh,  2  Johns. 
Ch.  162 ;  Belknap  v.  Belknap,  2  Johns.  Ch.  463 ;  Couch  v. 
Turnpike  Co.,  4  Johns.  Ch.  26;  Jerome  v.  Ross,  7  Johns. 
Ch.  315 ;  Osborn  v.  United  States  Bank,  7  Wheat.  738 ; 
Bonaparte  v.  Camden  &  A.  R.  R.  Co.,  Baldwin,  205 ;  Mc- 
Arthur  v.  Canal  Co.,  5  Ohio,  139 ;  Ross  v.  Page,  6  Ohio, 
166 ;  Mohawk  Bridge  Co.  v.  Utica  &  S.  R.  R.  Co.,  6  Paige, 
554 ;  Delaware  &  Md.  R.  R.  Co.  v.  Stemp,  8  Gill  &  J.  479 ; 
Rowe  v.  Granite  Bridge  Co.,  21  Pick.  344;  Browning  v. 
Camden  &  W.  R.  R.  Co.,  3  Green,  47 ;  Jordan  v.  Phil., 
W.  &  B.  R.  R.  Co.,  3  Wharton,  502 ;  Newburyport  T.  Co. 
v.  Eastern  R.  R.  Co.,  23  Pick.  326;  Bigelow  v.  Hartford 
Bridge  Co.,  14  Conn.  565 ;  O'Brien  v.  Norwich  &  Wor. 
R.  R.  Co.,  17  Conn.  372 ;  Moorhead  v.  Li'ttle  Miami  R.  R. 
Co.,  17  Ohio,  340 ;  Kean  v.  Central  R.  R.  Co.,  1  Stockton, 
401;  Newhall  v.  Galena  &  C.  TJ.  R.  R.  Co.,  14  111.  273; 
Boston  &  L.  R.  R.  Co.  v.  Salem  &  L.  R.  R.  Co.,  2  Gray,  1 ; 
Sanford  v.  R.  R.  Co.,  24  Pa.  St.  378 ;  Bell  v.  Ohio  &  P. 
R.  R.  Co.,  25  Pa.  St.  161;  Water  Comm.  v.  Hudson,  2 
Beasly,  420. 

There  are  more  cases  to  the  same  effect ;  an  unbroken  line 
of  decisions,  of  the  most  respectable  authority,  covering 
some  half  a  century ;  most  of  them  going  on  excess  or  abuse 
of  corporate  franchise,  and  all  fully  sustaining  equitable 
jurisdiction  in  case  of  private  wrong.  They  seem  to  estab- 
lish the  jurisdiction  of  courts  of  equity  in  this  country,  as 
conclusively  as  it  is  established  in  England,  of  private  suits 


297  Attorney  General  v.  Railroad  Cos. 

to  restrain  private  wrong  arising  from  excess  or  abuse  of 
power  by  corporations. 

In  such  cases,  public  wrong  may  be  considered  only  as 
an  aggregation  of  private  wrongs.  And,  the  jurisdiction 
once  established  to  enjoin  private  wrong,  in  each  case,  at 
the  suit  of  the  person  wronged,  it  is  almost  a  logical  neces- 
sity to  admit  the  other  branch  of  the  jurisdiction,  to  enjoin, 
at  the  suit  of  the  state,  such  a  general  wrong,  common  to 
the  whole  public,  as  interests  the  state,  and  could  be  reme- 
died by  private  persons  by  a  vast  multitude  of  suits  only, 
burthensome  to  each  and  impracticable  for  very  number; 
more  conveniently,  effectively  and  properly  represented  by 
the  attorney  general  as  parens  patrice.  But  jurisdiction  of 
informations  of  this  nature  has  sometimes  been  denied 
here,  courts  of  equity  in  this  country,  singularly  enough, 
being  sometimes  more  timid  to  control  corporate  power, 
and  less  willing  to  protect  the  public  against  corporate 
abuse,  than  the  English  chancery.  In  both  branches  of  the 
jurisdiction,  it  proceeds  as  for  quasi  nuisance;  and  it  is 
difficult  to  understand  why  the  jurisdiction  should  be  as- 
serted as  to  private  nuisance  and  denied  as  to  public  nui- 
sance ;  why,  for  the  same  cause,  individuals  should  have  a 
remedy  denied  to  the  aggregate  of  individuals,  called  the 
public.  But,  as  we  remarked  before,  in  this  regard  the 
judicial  voice  in  America  is  less  certain  in  tone  than  in 
England.  We  should  be  willing  to  follow  the  English  rule, 
in  this  state,  unless  there  were  a  preponderance  of  Ameri- 
can authority  against  it.  But  fortunately  we  find  this 
wholesome  jurisdiction  sustained  here  by  the  great  weight 
of  authority,  and,  with  modern  experience,  we  deem  it 
only  a  question  of  time  when  it  must  be  universally  as- 
serted and  exercised. 


Opinions  of  Chief  Justice  Ryan.  298 

In  Bigelow  v.  Hartford  Bridge  Co.,  supra,  Storrs,  J., 
takes  occasion  to  say :  "Indeed  it  is  upon  the  ground  of  par- 
ticular injury  to  the  plaintiff,  distinct  from  what  he  suffers 
in  common  with  the  rest  of  the  public,  that  all  applica- 
tions for  injunctions  against  what  is  a  public  nuisance  are 
sustained.  And  there  is  no  good  reason  why,  apart  from 
such  special  injury,  relief  should  be  granted  in  this  mode 
at  the  instance  of  a  particular  individual.  Courts  of  equity, 
in  this  respect,  proceed  on  the  principle  which  prevails  in 
courts  of  law,  that  an  action  will  not  lie  in  respect  of  a  pub- 
lic nuisance,  unless  the  plaintiff  has  sustained  a  particular 
damage  from  it,  and  one  not  common  to  the  public  gener- 
ally. To  preserve  and  enforce  the  rights  of  persons  as  indi- 
viduals, and  not  as  members  of  the  community  at  large,  is 
the  very  object  of  all  suits,  both  at  law  and  in  equity.  The 
remedies  which  the  law  provides  in  cases  where  the  rights 
of  the  public  are  affected,  are  ample  and  appropriate ;  and 
to  them  recourse  should  be  had  when  such  rights  are  vio- 
lated. The  courts  of  equity  in  England  will  indeed  sus- 
tain informations,  not  by  individuals,  but  at  the  suit  of  the 
attorney  general  or  the  proper  crown  officer,  for  the  pur- 
pose of  abating  public  nuisances  and  what  are  termed  pour- 
prestures.  That  mode  of  proceeding  has  been,  however, 
hitherto  unknown  here,  and  whether  it  would  be  tolerated 
in  any  case  it  is  unnecessary  to  consider."  14,  Conn.  578. 

This  is  not  a  very  accurate  statement  of  the  jurisdic- 
tion, which  does  not  go  to  abate,  but  to  restrain,  which  is 
the  very  ground  of  it,  as  distinct  from  legal  remedies.  The 
court  holds  the  jurisdiction  in  cases  of  private  nuisance 
and  of  public  nuisance  inflicting  particular  injury,  at  the 
suit  of  an  individual,  and  questions  it  at  the  suit  of  the 
state.  It  is  not  easy  to  comprehend  why  the  remedy  should 
avail  against  the  less  evil,  and  not  against  the  greater ;  why 


299  Attorney  General  v.  Railroad  Cos. 

equity  should  interpose  to  restrain  what  affects  one  person 
only,  and  refuse  its  protection  against  what  affects  all  per- 
sons ;  in  the  case  of  a  public  nuisance,  restrain  it  at  the  suit 
of  one  whom  it  especially  aggrieves,  and  refuse  to  do  so 
for  the  public  whom  it  equally  aggrieves.  The  reason  as- 
signed signally  fails ;  for  remedies  at  law  reach  private  as 
well  as  public  nuisances. 

If,  in  saying  that  the  remedy  by  information  in  behalf 
of  the  state  was  hitherto  unknown  there,  the  court  meant  in 
Connecticut,  it  was  probably  correct;  if  in  the  United 
States,  it  was  certainly  mistaken. 

Bigelow  v.  The  Hartford  Bridge  Co.  was  decided  in 
1842.  As  early  as  1834,  the  jurisdiction  was  entertained 
and  asserted  by  the  court  of  chancery  of  New  Jersey,  in 
Attorney  General  v.  New  Jersey  K.  E.  Co.,  2  Green,  136. 
The  chancellor  says :  "It  would  seem,  at  first,  incongruous 
and  improper  for  this  court  to  interfere  in  cases  of  public 
nuisance.  The  very  fact  that  nuisances  of  that  character 
are  offenses  against  the  community,  and  necessarily  savor 
of  criminality  in  a  greater  or  less  degree,  would  seem  to 
distinguish  them  as  matters  not  proper  to  be  dealt  with  by 
this  court.  But  the  jurisdiction  of  chancery,  to  a  certain 
extent,  in  cases  of  public  nuisance,  appears  to  be  admitted, 
although  it  has  been  very  rarely  exercised.  It  is  asserted 
by  Lord  Hardwicke  in  Baines  v.  Baker,  Ambler,  159,  3 
Atkyns,  750,  and  is  considered  as  existing  by  Lord  Eldon, 
in  the  case  of  the  Attorney  General  v.  Cleaver,  18  Vesey, 
211.  He  speaks  with  caution  on  the  subject,  as  though  it 
were  new  but  not  disputed  ground.  Chancellor  Kent,  in 
Attorney  General  v.  Utica  Ins.  Co.,  2  Johns.  Ch.  371,  ap- 
pears rather  to  question  the  jurisdiction;  considering  that 
the  cases  of  pourpresture  which  have  often  occurred  in  the 
Court  of  Exchequer  on  the  equity  side,  differ  in  some  im- 


Opinions  of  Chief  Justice  Ryan.  300 

portant  particulars  from  a  strict  case  of  public  nuisance. 
He  seems  to  think  that  the  case  of  Baines  v.  Baker,  be- 
fore Lord  Hardwicke,  has  been  misunderstood.     It  was  a 
bill  filed  by  one  individual  against  another,  to  stay  build- 
ing an  hospital  for  people  infected  with  the  smallpox,  very 
near  the  homes  of  several  tenants  of  the  plaintiff.     The 
court  said,  if  it  were  a1  nuisance  at  all,  it  was  a  public 
nuisance ;  that  bills  of  that  sort  were  founded  on  nuisances 
at  common  law,  and  if  a  public  nuisance  it  should  be  an 
information  in  the  name  of  the  attorney  general ;  and  then 
it  would  be  for  his  consideration  whether  he  would  file  such 
information  or  not.     Chancellor  Kent  throws  out  a  doubt 
whether  it  was  not  meant  that  the  attorney  general  might 
file  an  information  in  the  King's  Bench.     Such  has  not 
been  held  to  be  the  meaning  by  English  lawyers  or  courts, 
and  it  appears  to  me  their  construction  is  the  right  one." 
This  is  feeble  language  compared  with  the  English  cases 
cited.     It  is  certainly  not  true  in  our  day,  that  the  English 
courts  rarely  exercise  the  jurisdiction;  -  and  the  caution 
which  the  chancellor  attributes  to  Lord  Eldon  has  long 
since  passed  out  of  the  court.     It  may  be  safely  assumed 
that  the  chancellor  of  Xew  Jersey  who  asserted  the  juris- 
diction then,  would  be  less  timid  in  doing  so  now.    But  in 
that  day  he  adds :  "The  very  fact,  however,  that  there  may 
be  a  doubt  on  the  subject  by  intelligent  jurists,  should  be 
sufficient  to  induce  caution  on  the  part  of  this  court.     In 
cases  of  public  nuisance  there  is  an  undisputed  jurisdic- 
tion in  the  common-law  courts  by  indictment,  and  a  court 
of  equity  ought  not  to  interfere  in  a  case  of  misdemeanor, 
when  the  object  sought  can  be  as  well  attained  in  the  ordi- 
nary tribunals."    And  so,  asserting  the  jurisdiction,  he  de- 
nied the  motion. 

In  1836,  notwithstanding  the  cases  presently  noticed  in 


301  Attorney  General  v.  Railroad  Cos. 

2  Johns.  Ch.  and  Hopkins,  Chancellor  Walworth  asserted 
and  enforced  the  jurisdiction  in  New  York.  The  attor- 
ney general  filed  an  information  to  restrain  the  defendant 
corporation,  claiming  a  right  so  to  do,  from  tapping  a 
canal.  The  chancellor  sustained  the  jurisdiction  and  the 
injunction,  saying:  "This  court  has  jurisdiction  to  restrain 
any  pourpresture,  or  unauthorized  appropriation  of  public 
property  to  a  private  use,  which  may  amount  to  a  public 
nuisance,  or  may  injuriously  affect  or  endanger  the  public 
interest.  And  when  the  officers  entrusted  with  the  protec- 
tion of  such  public  interests,  acting  under  the  sanction  of 
their  official  oaths,  believe  the  intended  encroachment  will 
prove  injurious  to  the  navigation  of  the  canals,  private 
persons  should  not  be  permitted  to  interfere  with  the  wa- 
ters or  embankments  of  the  canals,  contrary  to  law,  upon 
a  mere  opinion,  although  under  the  sanction  of  an  oath, 
that  the  intended  trespass  upon  the  public  rights  would  not 
be  an  injury  to  the  public."  Attorney  General  v.  The  Co- 
hoes  Co.,  6  Paige,  133.  In  emergency,  the  New  York 
chancery  overlooked  Chancellor  Kent's  coy  doubts  and  nice 
subtleties,  and  assumed  the  jurisdiction  which  he  had  in- 
volved in  such  learned  obscurity. 

In  Georgetown  v.  Alexandria  Canal  Co.,  12  Peters,  91, 
which  was  a  bill  to  restrain  the  defendants  from  erecting  a 
nuisance  under  their  charter,  decided  in  1838,  the  supreme 
court  of  the  United  States  thus  state  the  jurisdiction : 

"Were  it  even  admitted  that  the  canal  company  had  ex- 
ceeded the  authority  under  which  they  are  acting,  never- 
theless, as  the  Potomac  Kiver  is  a  navigable  stream,  a  part 
of  the  jus  publicum,  any  obstruction  to  its  navigation 
would,  upon  the  most  established  principles,  be  what  is 
declared  by  law  to  be  a  public  nuisance.  A  public  nuisance 
being  the  subject  of  criminal  jurisdiction,  the  ordinary  and 


Opinions  of  Chief  Justice  Ryan.  302 

regular  proceeding  at  law  is  by  indictment  or  information, 
by  which  the  nuisance  may  be  abated,  and  the  person  who 
caused  it  may  be  punished.  If  any  particular  individual 
may  have  sustained  special  damage  from  the  erection  of  it, 
he  may  maintain  a  private  action  for  such  special  damage, 
because  to  that  extent  he  has  suffered  beyond  his  portion 
of  injury  in  common  with  the  community  at  large.  Besides 
this  remedy  at  law,  it  is  now  settled  that  a  court  of  equity 
may  take  jurisdiction  in  cases  of  public  nuisance,  by  an 
information  filed  by  the  attorney  general.  This  jurisdic- 
tion seems  to  have  been  acted  on  with  great  caution  and 
hesitancy.  Thus,  it  is  said  by  the  chancellor  in  18  Vesey, 
217,  that  the  instances  of  the  interposition  of  the  court  were 
confined  and  rare.  He  referred,  as  to  the  principle  author- 
ity on  the  subject,  to  what  had  been  done  in  the  court  of  ex- 
chequer, upon  the  discussion  of  the  right  of  the  attorney 
general,  by  some  species  of  information,  to  seek,  on  the 
equitable  side  of  the  court,  relief  as  to  nuisances  and  pre- 
ventive relief.  Chancellor  Kent,  in  2  Johns.  Ch.  382,  re- 
marks that  the  equity  jurisdiction  in  cases  of  public  nui- 
sance, in  the  only  cases  in  which  it  had  been  exercised,  that 
is,  in  cases  of  encroachment  on  the  king's  soil,  had  lain  dor- 
mant for  a  century  and  a  half;  that  is,  from  Charles  I. 
down  to  the  year  1795.  Yet  the  jurisdiction  has  been  fin- 
ally sustained,  upon  the  principle  that  equity  can  give  more 
adequate  and  complete  relief  than  can  be  obtained  at  law. 
Whilst,  therefore,  it  is  admitted  by  all,  that  it  is  one  of 
delicacy,  and  accordingly  the  instances  of  its  exercise  are 
rare,  yet  it  may  be  exercised  in  those  cases  in  which  there 
is  imminent  danger  of  irreparable  mischief  before  the  tar- 
diness of  the  law  could  reach  it." 

These  views  were  adopted  by  the  United  States  circuit 
court  of  Michigan,  in  the  same  year,  on  a  bill  for  injunc- 


303  Attorney  General  v.  Railroad  Cos. 

tion  against  a  nuisance.  The  court  asserts  both  branches 
of  the  jurisdiction  in  equity,  and  says:  "No  individual  has 
a  right  to  prosecute  for  a  public  nuisance,  in  his  own  name 
or  at  his  own  instance,  in  this  form  of  action,  unless  the 
nuisance  be  irreparably  injurious  to  himself.  The  United 
States,  through  their  law  officer,  might  well  ask  to  have 
this  nuisance,  if  it  shall  be  one,  abated ;  but  the  special  and 
private  injury  to  an  individual  is  the  only  ground  on  which 
he  can  ask  relief  against  it."  Spooner  v.  McConnell,  1 
McLean,  337. 

And  the  same  views  were  again  recognized  and  affirmed 
by  the  supreme  court  of  the  United  States,  in  1851,  in 
Pennsylvania  v.  "Wheeling  Bridge  Co.,  13  Howard  518. 

The  same  question  came  before  the  supreme  court  of 
Pennsylvania  in  1854,  at  the  suit  of  the  attorney  general 
against  a  railroad  company  to  restrain  them  from  filling 
up  a  canal  in  the  construction  of  their  road,  under  their 
franchise.  The  court  says : 

"The  boldness  of  this  act  seems  almost  like  a  studied  test 
of  the  vigilance  of  the  canal  commissioners,  and  of  the  effi- 
ciency of  the  remedies  which  the  state  has  provided  for  the 
prevention  of  injuries.  It  is  hoped  that  the  equity  remedy, 
being  somewhat  unusual  and  peremptory  in  its  character, 
will  not  be  applied  to  an  act  which  does  so  little  injury. 
But  writs  of  capias,  replevin,  foreign  and  domestic  attach- 
ment, estrepement,  prohibition  and  habeas  corpus,  are  quite 
as  efficient  and  peremptory  in  their  power,  and  most  of 
them  more  easily  obtained,  and  yet  they  are  common  law 
writs.  And  estrepement  applies  to  many  of  the  same  cases 
as  injunction,  and  may  issue  without  bail.  And  so  it  was 
once  with  the  prohibition.  In  most  of  the  cases,  moreover, 
in  which  we  hear  this  objection  to  the  injunction,  the  com- 
mon law  allows  more  speedy  remedy,  for  it  permits  the  in- 


Opinions  of  Chief  Justice  Ryan.  304 

jured  party  to  redress  himself  by  driving  off  the  wrong- 
doer. 

"The  argument  that  there  is  no  irreparable  damage 
would  not  be  so  often  used  by  wrongdoers,  if  they  would 
take  the  trouble  to  observe  that  the  word  "irreparable"  is 
a  very  unhappily  chosen  one,  used  in  expressing  the  rule 
that  an  injunction  may  issue  to  prevent  wrongs  of  a  re- 
peated and  continuing  character,  or  which  occasion  dam- 
ages which  are  estimable  only  by  conjecture  and  not  by  any 
accurate  standard.  3  Railway  Cases,  106,  345 ;  4  id., 
186;  I.Sim.  &  Stuart,  607;  3  Atkyns,  21;  3  Johns.  Ch. 
501;  16  Pick.  525;  3  Wharton,  513.  As  this  argument 
is  generally  presented,  it  seems  to  be  supposed  that  in- 
junctions can  apply  only  to  very  great  injuries;  and  it 
would  follow  that  he  who  has  not  much  property  to  be  in- 
jured, cannot  have  this  protection  for  the  little  he  has. 

"Besides  this,  where  the  right  invaded  is  secured  by  stat- 
ute or  by  contract,  there  is  generally  no  question  of  the 
amount  of  damage,  but  simply  of  the .  right.  He  who 
grants  a  right  cannot  take  it  away,  even  on  giving  a  better, 
without  a  new  agreement  for  the  purpose.  19  Eng.  L.  & 
E.  287;  16  Pick.  525;  4  Simons,  13;  8  Wend.  99;  8 
Paige,  351 ;  2  Swanston,  253.  And  such  was  our  decision 
in  the  late  case  of  the  Western  Saving  Fund  Co.  v.  Phila- 
delphia. 

"And  so  it  is  where  the  public  rights  are  invaded.  In 
the  case  of  the  Attorney  General  v.  The  Cohoes  Co.,  6 
Paige,  133,  there  was  an  offer  to  tap  the  state  canal  for  a 
mill  purpose,  and  it  was  stopped  by  injunction,  without 
any  regard  to  evidence  tending  to  disprove  damage.  And 
in  Downing  v.  McFadden,  18  State  E-.  334,  we  justified 
the  keepers  of  the  public  works  in  abating  a  house  that  en- 


305  Attorney  General  v.  Railroad  Cos. 

croached  upon  the  enbankment  of  a  railroad,  though  a  jury 
had  found  that  it  did  no  injury. 

"And  when  railroad  companies  or  individuals  exceed 
their  statutory  powers  in  dealing  with  other  people's  prop- 
erty, no  question  of  damage  is  raised  when  an  injunction  is 
applied  for,  but  simply  one  of  the  invasion  of  a  right.  1 
Railway  Cases,  135 ;  4-  Mylne  &  C.,  254.  And  railway 
companies  will  not  be  allowed  to  exercise  their  discretion 
capriciously  (1  Railway  Cases,  288),  but  the  court  will 
supervise  their  discretion,  as  in  seeing  that  they  shall  not 
take  more  land  than  is  needed,  nor  take  any  land  merely 
in  order  to  get  earth  for  embankments  (1  id.  576 ;  4  Mylne 
&  C.  116)  ;  and  that  they  do  not  unnecessarily  affect  a 
mill-race  by  too  small  an  arch  over  it.  1  Russell  &  M^ 
181 ;  2  Railwaj  Cases,  280. 

"Railway  companies  must  stand  upon  a  strict  construc- 
tion of  their  chartered  privileges.  21  State.  R.  22 ;  9 
Beavan,  391;  2  Mann  &  Granger,  134;  7  id.  253;  1  Rail- 
way Cases,  576;  3  id.  563;  21  Eng.  L.  &  E.  620.  With 
the  immense  powers  that  are  freely  and  loosely  given  to 
them,  this  much  restraint  is  essential  to  the  protection  of 
private  rights.  1  Railway  Cases,  154,  504,  636;  4  Mylne 
&  C.  120. 

"If  they  step  one  inch  beyond  their  chartered  privileges 
to,  the  prejudice  of  others  or  of  the  stockholders,  or  offer 
to  do  any  act  without  the  prescribed  preliminary  steps, 
they  are  liable  to  be  enjoined,  irrespective  of  the  amount 
of  damage."  Commonwealth  v.  Railway  Co.,  24  Pa.  St. 
159. 

There  is  no  doubt  or  hesitation  here.  Time  and  experi- 
ence had  done  their  work;  as  the  court  says,  referring  to 
the  English  cases :  "Such  at  least  is  the  practice  elsewhere, 
20 


Opinions  of  Chief  Justice  Ryan,  306 

and  it  may  be  well  for  us  to  learn  from  the  experience  of 
others."  And  the  same  doctrine  is  reaffirmed  by  the  court, 
in  1867,  Sparhawk  v.  U.  P.  Railway  Co.,  54  Pa.  St.  401. 

The  question  came  again  before  the  New  Jersey  chan- 
cery and  court  of  errors  in  1853,  upon  information  and 
bill  to  restrain  a  corporation  from  exercising  their  fran- 
chise by  the  erection  of  a  public  nuisance.  The  chancellor 
refused  a  preliminary  injunction,  but  briefly  and  clearly 
asserted  the  jurisdiction.  He  says:  "I  have  no  doubt  of 
the  power  of  the  court  to  interpose  in  this  case  by  injunc- 
tion; nor  of  the  propriety  of  its  exercising  that  peculiar 
jurisdiction,  if,  as  alleged,  the  defendants,  under  and  by 
virtue  of  the  power  of  the  legislature,  conferred  upon  the 
Patterson  and  Hudson  River  Railroad  Company,  to  bridge 
the  river  Passaic,  are  obstructing  the  navigation  of  that 
river,  in  violation  of  the  provisions  of  the  act  from  which 
they  derive  their  authority." 

The  court  of  errors  reversed  the  order  of  the  chancellor 
and  granted  the  injunction,  stating  the  doctrine  in  the  lan- 
guage of  Story's  Equity.  "  'In  regard  to  public  nuisances/ 
says  Justice  Story,  'the  jurisdiction  of  courts  of  equity 
seems  to  be  of  very  ancient  date,  and  has  been  distinctly 
traced  back  to  the  reign  of  Queen  Elizabeth.  The  juris- 
diction is  applicable  not  only  to  public  nuisances  strictly 
so  called,  but  also  to  pourprestures  upon  public  rights  and 
property,  as  public  rivers,  etc.' '  Att'y  Gen.  v.  Hudson 
;River  R.  R.  Co.,  1  Stockton,  526. 

And  again  in  1855,  upon  an  information  and  bill  to  re- 
strain abuse  of  corporate  franchise,  Chancellor  Halsted 
had  allowed  a  preliminary  injunction,  in  an  opinion  in 
which,  after  his  few  authoritative  words  in  the  case  last 
#ited,  he  tacitly  assumes  the  jurisdiction.  A  motion  for 
attachment  for  violation  of  the  injunction  was  heard  before 


307  Attorney  General  v.  Railroad  Cos. 

Green,  C.  J.,  sitting  for  Chancellor  Williamson,  who  had 
succeeded  Chancellor  Halsted  and  had  been  of  counsel  in 
the  cause.  Chief  Justice  Green  reviews  the  merits  of  the 
case  at  great  length,  without  a  word  said  of  jurisdiction, 
and  sustains  the  information  on  the  merits.  He  gives  a 
second  opinion  on  the  merits,  upon  exceptions  taken,  with 
the  same  significant  silence.  Elmer,  J.,  delivers  the  judg- 
ment of  the  court  of  errors  on  appeal,  at  some  length,  affirm- 
ing the  orders  of  the  chancery,  with  the  same  tacit  recog- 
nition of  the  jurisdiction,  as  one  not  to  be  doubted.  An 
eloquent  silence,  following  twenty-one  years  after  the  fal- 
tering opinion  in  Att'y  Gen.  v.  K  J.  E.  E.  Co.,  supra. 

We  can  see  nothing  in  conflict  with  these  cases  in  the  in- 
termediate case  of  Att'y  Gen.  v.  Paterson,  1  Stockton,  624, 
cited  for  the  defendants,  which  is  indeed  a  confirmation  of 
the  jurisdiction.  In  1865,  in  Pennsylvania,  one  corpora- 
tion filed  a  bill  against  another  to  enforce  the  charter  obli- 
gations of  the  defendant.  The  court  holds  that,  suffering 
no  special  injury,  the  plaintiff  could  not  maintain  the  bill ; 
and  thus,  after  much  similar  discussion,  assigns  the  reason 
of  the  judgment ;  "It  is  plain,  therefore,  that  a  private  in- 
dividual may  not,  in  the  absence  of  a  special  right  or  spe- 
cial authority,  vindicate  the  public  for  breach  of  duties 
owing  to  her  alone.  Nobody  will  doubt  that  he  may  enforce 
against  public  corporations,  contracts  and  duties  which  they 
ought  to  perform  towards  himself ;  and,  in  doing  this,  some- 
times the  public  interests  are  subserved,  and  this  is  all  right. 
But  it  is  his  special  interest  that  gives  him  the  right  to  act. 
This  might  be  enough  for  this  case ;  but  it  may  not  be  out 
of  place  to  add  that  we  have  no  doubt  but  the  remedy  by  a 
bill  for  an  injunction,  sued  out  on  the  part  of  the  common- 
wealth, by  the  attorney  general,  would  lie  against  a  com- 
pany to  compel  them  to  observe  their  charter  obligations. 


Opinions  of  Chief  Justice  Ryan.  308 

It  would  in  this  case  be  a  substitute  for  a  mandamus,  and 
come  within  the  power  given  to  courts  of  equity  to  control 
corporations  other  than  municipal."  Buck  Mountain  0. 
Co.  v.  Lehigh  Coal  &  K  Co.,  50  Pa.  St.  91. 

The  same  question  came  before  the  supreme  court  of 
Missouri,  in  1873,  upon  an  information  in  equity  against 
a  municipal  corporation.  Shepley,  S.  J.,  in  delivering  the 
opinion  of  the  court,  reviews  the  cases  at  great  length,  and 
sustains  the  jurisdiction.  This  is  his  general  conclusion: 
"It  seems  to  me  that,  both  on  principle  and  authority,  this 
proceeding  is  maintainable ;  and  that,  while  in  case  of  priv- 
ate corporations,  the  courts  of  this  country,  will  sustain 
the  conclusions  arrived  at  in  2  Johns.  Ch.  371,  in  103 
Mass.  138,  and  104  Mass.  239,  that  the  writ  of  quo  war- 
ranto  affords  ample  and  efficient  remedy  for  violation  of 
its  charter  or  misuse  or  abuse  of  its  powers,  and  that  there- 
fore this  form  of  proceeding  will  not  lie,  the  powers  of  the 
state,  through  its  proper  legal  officers,  to  restrain  public 
corporations  from  a  violation  of  the  law  will  be  sustained." 
State  v.  Saline  Co.,  51  Mo.  350. 

There  is  a  strong  presumption  that  the  term  private  cor- 
porations, as  here  used,  is  intended  to  designate  private 
trading  corporations;  and  the  term,  public  corporations, 
to  include  all  quasi  public  corporations,  whose  relations 
with  the  public  involve  public  interests  and  public  ques- 
tions. This  is  indicated  by  the  cases  in  Massachusetts  on 
which  the  distinction  is  rested,  and  the  language  of  the 
court  in  those  cases ;  and  seems  to  follow  from  many  other 
cases  cited  and  commented  on,  which  certainly  do  not  con- 
fine the  remedy  to  private  corporations,  in  the  sense  in 
which  these  defendants  are  such.  And,  indeed,  it  is  not 
easy  to  see  how  a  private  trading  corporation  could  cause 
public  injury  by  a  mere  abuse  or  excess  of  franchise,  or 


309  Attorney  General  v.  Railroad  Cos. 

otherwise  than  as  a  natural  person  might.  This  construc- 
tion of  Judge  Shepley's  language  is  confirmed  by  the  addi- 
tional opinion  of  Judge  Bliss,  who  discusses  the  question 
at  some  length,  and  recognizes  no  such  qualification  of 
the  jurisdiction.  He  says: 

"How  much  more  adequate  the  remedy  that  prevents  the 
doing  of  any  legal  wrong,  than  those  that  are  merely  puni- 
tive, or  that  compel  every  tax  payer  to  prosecute."  "I  am 
aware  that  the  jurisdiction  of  a  court  of  equity,  by  injunc- 
tion, even  to  restrict  a  public  nuisance,  has  been  denied  in 
Massachusetts  under  their  statute  (Hale  v.  Cushman,  6 
Mete.  425),  but  it  is  established  in  England,  and  generally 
admitted  in  the  United  States ;  and  the  rule  as  to  the  proper 
plaintiff  is,  I  believe,  universal." 

And  this  is  further  confirmed  by  the  dissenting  opinion 
of  Wagner,  J.  He  objects  to  the  jurisdiction  assumed,  as 
injuriously  affecting  the  rights  of  stockholders,  which  must 
mean  those  of  quasi  public  corporations.  And  we  feel 
safe  in  assuming  that,  so  far  as  it  is  necessary  here,  this 
decision  is  ,in  accord  with  the  others  cited  on  this  point. 

In  our  investigations  of  this  question,  we  have  carefully 
examined  all  the  authorities  cited  at  the  bar  and  many 
others.  It  is  probable  that  there  may  be  others,  which  have 
escaped  our  attention.  But  we  think  we  have  sufficiently 
shown  that  the  jurisdiction  has  long  been  asserted  and  is 
very  generally  recognized  in  the  United  States.  And,  be- 
fore leaving  this  review  of  the  authorities  sustaining  the 
jurisdiction,  we  wish  to  quote  the  terse  and  comprehensive 
statement  of  its  scope,  given  by  the  supreme  court  of  Penn- 
sylvania. "This  remedy  extends  to  all  acts  that  are  con- 
trary to  law,  and  prejudicial  to  the  interests  of  the  com- 
munity, and  for  which  there  is  no  adequate  remedy  at 
law."  Kerr  v.  Trego,  47  Pa.  St.  292. 


Opinions  of  Chief  Justice  Ryan.  310 

Two  cases  in  Massachusetts  were  cited  for  the  defend- 
ants, as  denying  the  jurisdiction.  They  do  not  seem  to 
us  to  do  so. 

The  Attorney  General  v.  Salem,  103  Mass.  138,  was  an 
information  in  the  nature  of  quo  warrant o  against  a  muni- 
cipal corporation  for  failure  of  duty.  The  court  holds 
that  the  remedy  does  not  lie  in  the  case,  for  reasons  not 
pertinent  here.  It  was,  perhaps,  a  case  for  mandamus. 
Having  so  decided  the  case,  Morton,  J.,  adds: 

"But  the  plaintiffs  urge  that  this  proceeding  may  be 
treated  as  a  proceeding  for  general  relief  on  the  equity  side 
of  the  court.  If  the  necessary  amendments  were  made  to 
change  it  into  an  information  or  a  bill  in  equity,  we  are  of 
opinion  that  it  still  could  not  be  sustained.  Whether,  in 
this  state,  in  the  absence  of  any  express  grant  of  jurisdic- 
tion, the  attorney  general  can  bring  a  bill  in  equity  to  re- 
dress any  public  wrong  or  grievance,  need  not  be  decided. 
It  is  clear  that  such  a  bill  cannot  be  sustained  for  a  priv- 
ate wrong.  In  this  case,  the  grievance  complained  of  is 
not  a  public  wrong,  in  which  every  subject  of  the  state  is 
interested;  and  therefore  cannot  be  redressed  by  a  public 
prosecution  or  proceeding." 

This  was  only  a  refusal  to  pass  upon  the  question,  be- 
cause the  question  was  not  before  the  court  The  refusal 
certainly  implies  a  doubt,  very  much  such  as  that  suggested 
by  the  supreme  court  of  Connecticut.  But  the  doubts  even 
of  such  respectable  tribunals  cannot  weigh  against  so  much 
solid  authority. 

The  Attorney  General  v.  Tudor  Ice  Co.,  104  Mass.  239, 
was  an  information  on  the  relation  of  a  private  person,  to 
restrain  the  defendant  from  trading  outside  of  its  fran- 
chise. The  court  says:  "The  Tudor  Ice  Co.  is  a  private 
trading  corporation.  It  is  not  in  any  sense  a  trustee  for 


Attorney  General  v.  Railroad  Cos. 

public  purposes.  The  acts  complained  of  are  not  shown 
to  have  injured  or  endangered  any  rights  of  the  public, 
or  of  any  individual  or  other  corporation,  and  cannot,  un- 
der any  legal  construction,  be  held  to  constitute  a  nuisance." 
"Xo  case  is  therefore  made,  upon  which,  according  to  the 
principle  of  equity  jurisprudence  and  the  practice  of  this 
court,  an  injunction  should  be  issued  upon  an  information 
in  chancery." 

This  disposes  of  the  case.  But  the  court  proceeds  to 
quote,  with  implied  approbation,  Att'y  Gen.  v.  Utica  Ins. 
Co.,  infra,  and  Att'y  Gen.  v.  Eeynolds,  1  Eq.  C.  Abr.  131 ; 
and  to  make  this  comment  on  later  English  cases:  "The 
modern  English  cases,  cited  in  support  of  the  information, 
were  of  suits  against  public  bodies  or  officers  exceeding 
the  powers  conferred  upon  them  by  law,  or  against  corpor- 
ations vested  with  the  power  of  eminent  domain,  and  doing 
acts  which  were  deemed  inconsistent  with  the  rights  of 
the  public." 

Without  stopping  to  consider  the  accuracy  of  this  com- 
ment, we  content  ourselves  with  the  remark  that  no  doubt 
is  implied  of  the  jurisdiction  of  such  informations  as  those 
now  before  this  court. 

After  some  particular  comments  on  certain  English 
cases,  the  court  proceeds  to  state  the  position  of  Massachu- 
setts on  this  question,  thus :  "However  that  may  be,  by  our 
statutes  the  general  equity  jurisdiction  of  this  court  is  lim- 
ited to  cases  where  there  is  no  plain,  adequate  and  complete 
remedy  at  law,  as  well  in  suits  by  the  commonwealth  as 
those  brought  by  private  persons.  Gen.  Stat.  ch.  113, 
sec.  2." 

This  shows  that  the  court  seems  to  think  their  juris- 
diction, in  such  cases,  crippled  by  statute.  And  yet  that 
court  has,  not  only  in  the  cases  above  cited  sustained  priv- 


Opinions  of  Chief  Justice  Ryan.  312 

ate  suits  within  the  jurisdiction  in  question,  but  appears  to 
have  acted  on  the  public  branch  of  that  jurisdiction  in 
several  cases.  It  is  true  that  they  are  cases  of  nuisance, 
but  they  seem  to  us  to  be  within  the  broad  principles  laid 
down  in  England  and  this  country.  Att'y  Gen.  v.  Boston 
Wharf  Co.,  12  Gray,  553 ;  Dist.  Att'y  v.  Lynn  &  B.  R.  R. 
Co.,  16  Gray,  242 ;  Commonwealth  v.  Smith,  10  Allen,  448. 
The  case  in  16  Gray  appears  to  us  fully  to  support  the  ju- 
risdiction of  equity  to  restrain  corporations  from  excess 
or  abuse  of  franchise. 

Other  cases  outside  of  New  York  were  cited  against  the 
jurisdiction  but  on  examination  we  cannot  consider  any 
of  them  as  having  bearing  and  weight  upon  the  question. 
But  the  cases  in  ]^ew  York  require  consideration. 

In  that  state  the  authorities  are  conflicting,  and  do 
not  appear  to  us  to  rest  on  distinct  and  settled  principle. 
We  have  already  cited  several  cases  decided  by  Chancellor 
Kent  and  other  judges,  sustaining  the  private  remedy  in 
equity  against  nuisance,  and  one  case  sustaining  the  public 
remedy.  And  the  last  case  which  we  have  seen  in  the 
court  of  appeals  sustains  the  public  remedy  in  equity. 
People  v.  Vanderbilt,  26  N.  Y.  287. 

The  jurisdiction,  as  applied  to  abuse  or  excess  of  corpor- 
ate franchise,  is  denied  in  the  last  case  we  have  seen  in 
that  court  on  the  precise  question.  People  v.  Albany  & 
Vt  R.  R.  Co.,  24  K  Y.  261. 

We  have  been  referred  to  several  cases,  in  other  courts  of 
that  state,  for  and  against  the  jurisdiction.  For  it  are 
Davis  v.  Mayor,  etc.,  2  Duer,  663 ;  People  v.  Mayor,  etc., 
32  Barb.,  102 ;  People  v.  Albany  &  Vt.  R.  R.  Co.,  3T  Barb. 
216,  reversed  in  24  N".  Y.  261.  Against  it  are  dicta  of 
Vice  Chancellor  McCoun  in  Verplanck  v.  Mercantile  Ins. 
Co.,  1  Edwards,  88,  and  of  Strong,  J.,  in  Smith  v.  Lock- 


313  Attorney  General  v.  Railroad  Cos. 

•wood,  13  Barb.  219;  People  v.  Miner,  2  Lansing,  407 
and  People  v.  Albany  &  Vt  R  R.  Co.,  supra. 

We  must  accept  this  last  case  as  authoritative  on  the  pre- 
cise point,  for  the  present,  in  New  York ;  though  in  view 
of  all  the  authorities,  it  is  difficult,  at  this  day,  to  reconcile 
it  in  principle  with  the  later  case  of  People  v.  Vanderbilt. 
The  latter  case  goes  on  the  ground  of  pourpresture,  which 
is  a  special  kind  of  public  nuisance.  The  common-law  de- 
fines a  nuisance  as  anything  unlawful,  which  works  hurt, 
inconvenience  or  damage ;  and  a  pourpresture,  formerly  an 
intrusion  on  the  King's  soil,  is  now  defined  as  an  encroach- 
ment upon  public  rights  or  property.  It  is  easy  to  under- 
stand how  the  courts  have,  of  late,  applied  both  terms  to  un- 
lawful excess  or  abuse  of  corporate  franchise,  as  an  en- 
croa'chment  upon  and  a  hurt  to  public  rights.  But  it  is 
difficult  to  appreciate  how  the  courts  of  New  York  continue 
to  adhere  to  the  physical  meaning  of  pourpresture,  in  the 
light  of  all  the  modern  authorities,  and  to  relieve  the  pub- 
lic and  individuals  against  material  nuisance,  and  refuse 
to  relieve  the  state  against  the  most  serious  form  of  pour- 
presture, only  because  it  is  immaterial. 

And  we  must  be  permitted  to  remark  that  the  opinion 
of  the  court  in  24  New  York  is  destitute  of  authority  cited 
to  uphold  it ;  rests  on  the  unsupported  dictum  of  the  court ; 
and,  however  respectable  in  itself,  and  for  the  authority  of 
the  court  which  utters  it,  does  not  compare  favorably  with 
the  able  and  learned  opinions  of  Duer,  J.,  in  Davis  v. 
Mayor,  etc.,  and  of  Hogeboom,  J.,  in  People  v.  Mayor,  ete. 
In  the  face  of  all  the  authorities,  and  apparently  ignoring 
them,  it  disposes  of  the  question  of  jurisdiction  in  this 
brief  and  bare  sentence:  "Any  remedy  which  the  public 
may  have  for  a  breach  or  neglect  of  duty  imposed  by  the 
Railroad  Act,  must  be  by  mandamus,  quo  warranto  or  in- 


Opinions  of  Chief  Justice  Ryan.  3U 

dictment;  and  the  performance  of  such  duty  cannot  be 
specifically  enforced  in  equity  at  the  suit  of  the  attorney 
general."  Outside  of  New  York,  this  opinion  can  weigh 
little  against  the  current  of  authority. 

We  are  led  to  believe  that  the  singular  and  erratic  course 
of  the  New  York  courts  on  this  subject  is  somewhat  attrib- 
utable to  the  case  of  Attorney  General  v.  Utica  Ins.  Co., 
2  Johns.  Ch.,  371,  in  1817,  followed  in  1825  by  Attorney 
General  v.  Bank  of  Niagara,  Hopkins,  354. 

Whatever  degree  of  deference  might  be  due,  in  this  day, 
to  the  decision  of  so  illustrious  an  equity  judge  as  Chancel- 
lor Kent,  made  at  so  early  a  day,  we  are  unable  to  regard 
Attorney  General  v.  Utica  Ins.  Co.,  as  authority  against  the 
jurisdiction  under  consideration.  It  was  an  information 
in  equity  by  the  attorney  general  for  an  injunction  against 
the  corporation  to  restrain  it  from  usurping  banking  pow- 
ers. The  court  held  that  no  injury  to  the  public  or  private 
persons  was  averred  or  apparent ;  which,  in  that  day,  if  not 
now,  would  be  adequate  ground  for  dismissing  the  informa- 
tion. But  the  court  goes  on  to  discuss  the  equitable  juris- 
diction of  nuisance  and  kindred  cases,  and  incidentally  de- 
nies the  authority  of  equity  to  enjoin  excess  of  corporate 
franchise ;  though  the  chancellor  leaves  room  for  an  infer- 
ence that  he  might  have  held  otherwise,  had  a  public  evil 
been  averred  or  apparent.  It  must  be  borne  in  mind  that 
this  was  long  before  the  era  of  great  corporations  in  this 
country,  and  that  the  modern  practice  of  courts  of  equity 
in  England  and  this  country,  of  applying  the  equitable 
remedy  against  nuisance  to  abuse  of  corporate  franchise, 
was  nearly  or  quite  unknown.  And  the  chancellor,  passing 
from  the  single  point  of  his  decision,  brings  all  his  great 
learning  to  bear  on  all  collateral  questions,  in  such  variety 
and  at  such  length,  that  it  is  not  altogether  easy  to  discover 


315  Attorney  General  v.  Railroad  Cos, 

what  his  precise  views  were  on  many  subjects  discussed. 
We  adopt  the  view  of  Chancellor  Yroom,  supra,  that  Chan- 
cellor Kent  only  "appears  rather  to  question  the  jurisdic- 
tion." Be  that  as  it  may,  it  doubtless  misled  many,  as  V. 
C.  McCoun,  in  Verplanck  v.  Mercantile  Ins.  Co.,  to  think 
that  the  decision  was  against  the  jurisdiction  under  any 
circumstances.  And  with  all  our  admiration  of  his  learn- 
ing and  deference  for  his  authority  and  veneration  for  his 
judicial  qualities,  we  cannot  help  feeling  that,  as  in  the 
case  of  the  exercise  of  the  right  of  eminent  domain,  the 
great  chancellor  misled  the  courts  of  Xew  York  into  error 
on  this  question  also.  In  the  one  case,  it  took  them  some 
quarter  of  a  century  to  return  to  sound  principles.  In  the 
other,  they  have  not  yet  done  so.  So  mischievous  is  the 
sanction  of  a  great  name  to  error. 

It  is  hardly  necessary  to  add  that  we  sustain  the  juris- 
diction to  enjoin  a  corporation  from  abuse  or  excess  of  fran- 
chise, or  other  violation  of  public  law  to  public  detriment, 
on  information  in  equity,  filed  ex  officio  by  the  attorney 
general. 

It  will  be  perceived  that  we  do  not  found  our  jurisdiction 
on  ch.  148,  sees.  13  and  14,  R.  S.  We  quite  agree  with 
the  counsel  for  the  defendants,  that  these  sections  confer 
no  jurisdiction  on  this  court.  Whether  they  operate  to 
limit  the  jurisdiction  of  tie  circuit  courts,  or  are  only  de- 
claratory of  the  jurisdiction  which  we  hold  to  exist  outside 
of  them,  we  need  not  consider  here.  It  is  certain  that  they 
do  not  limit  the  jurisdiction  of  this  court,  if  it  be  competent 
for  the  legislature  to  limit  it. 

The  jurisdiction  which  we  claim  for  this  court  puts  the 
writ  of  injunction  to  a  prerogative  use.  And  we  are 
strongly  inclined  to  think  that  our  views  of  our  jurisdiction 
of  these  informations,  follow  almost  logically  from  our 


Opinions  of  Chief  Justice  Ryan.  316 

views  of  our  jurisdiction  of  the  writ  as  a  quasi  prerogative 
writ.  And  we  have  illy  expressed  ourselves,  and  illy  ap- 
plied the  authorities  quoted,  if  we  have  not  already  made 
it  apparent  that  we  consider  this  jurisdiction,  in  this  court, 
a  necessary  and  most  salutary  one  for  the  preservation  of 
public  right  and  public  authority. 

It  was  objected  to  the  exercise  of  the  jurisdiction  in  these 
cases,  that  it  would  deprive  the  defendants  of  the  right  of 
trial  by  jury,  secured  by  sec.  5,  art.  1  of  the  state  constitu- 
tion, extending  to  all  cases  at  law. 

It  has  been  held  by  this  court  that  this  constitutional 
guaranty  does  not  extend  to  cases  in  equity,  including 
such  cases  of  legal  right  as,  by  the  practice  of  courts  of 
equity,  had  become  of  equitable  cognizance  at  the  time  of 
the  adoption  of  the  constitution.  Stilwell  v.  Kellogg,  14 
Wis.  461,  affirmed  in  several  late  cases  cited  in  Vilas  & 
Bryant's  notes. 

The  constitution  was  adopted  in  1848.  And  the  English 
cases  prior  to  the  time  are  authority  to  show  this  equitable 
jurisdiction.  For  it  was  fourteen  years  later  that  the  court 
of  chancery  was  authorized  by  act  of  parliament  to  deter- 
mine all  questions  of  law  and  fact,  with  one  qualified  ex- 
ception, 25  and  26  Viet.,  ch.  42,  sec.  1.  And  the  English 
and  American  cases  cited  show  that  this  jurisdiction  was 
an  established  equitable  jurisdiction  at  the  time  the  consti- 
tution was  adopted.  But  were  this  otherwise,  we  cannot 
perceive  of  what  trial  by  jury,  of  what  right,  these  in- 
formations can  deprive  the  defendants.  Their  whole  de- 
fense rests  in  questions  of  law.  There  is  no  fact  for  them  to 
traverse,  except  their  violation  of  the  law.  And  their  de- 
nial of  this,  if  indeed  they  are  to  be  taken  as  denying  it, 
is  manifestly  formal  only.  And,  if  it  were  a  bona  fide 
denial,  these  proceedings  would  not  deprive  them  of  any 


317  Attorney  General  v.  Railroad  Cos. 

legal  right  triable  by  jury.  If  the  law  be  valid,  they  are 
bound  to  obey  it  If  they  are  obeying  it,  the  injunction 
cannot  harm  them  or  deprive  them  of  any  trial.  If  they 
are  not  obeying  it,  there  is  nothing  involved  here  to  be 
tried.  The  objection  is  specious,  but  is  only  specious. 

The  question  is  not  here,  and  we  shall  not  consider  it, 
whether,  under  our  practice,  we  could  take  equitable  juris- 
diction of  a  case  in  which  a  legal  right  is  involved  triable 
by  jury,  and  provide  for  a  trial  of  that  right  by  a  jury,  so 
as  to  satisfy  the  provisions  of  the  constitution. 

It  was  also  urgently  pressed  upon  us  that,  all  other  ques- 
tions apart,  no  equitable  proceedings  would  lie  to  enforce 
chapter  273  of  1874,  because  it  furnishes  its  own  remedies 
by  providing  penalties  against  the  corporations  violating 
it.  We  do  not  consider  the  rule  on  which  the  defendants 
rely,  applicable  to  cases  of  this  character,  and  should  prob- 
ably hold  so  in  these  cases,  if  the  fact  were  as  stated.  But 
we  shall  not  discuss  the  question,  because  it  is  not  here. 
These  informations  go  to  enforce  the  rates  fixed  by  the  stat- 
ute itself,  not  rates  fixed  by  the  commissioners.  It  does  not 
appear  that  the  commissioners  have  fixed  any  rates  or  classi- 
fied any  article  of  freight.  And  for  violations  of  the  rates 
fixed  by  the  act  itself,  no  penalties  are  provided  against  the 
corporations ;  certain  civil  remedies  are  given,  but  no  pen- 
alty. There  are  penalties  against  agents ;  but  the  remedy 
against  the  corporations  is  a  distinct  thing  from  the  liability 
of  their  servants,  as  individuals,  for  violations  of  public 
law,  mandatory  upon  them  as  private  citizens. 

This  is,  perhaps,  as  appropriate  a  place  as  we  may  find 
to  notice  an  objection  taken  to  the  informations.  It  is  said 
that  they  aver  no  specific  injury  to  the  public.  Such  an 
injury,  in  such  a  case,  is  a  conclusion  of  fact,  rather  than 
a  fact.  The  injury  is  a  logical  sequence  of  the  facts.  The 


Opinions  of  Chief  Justice  Ryon.  318 

acts  of  the  defendants  charged  give  the  jurisdiction;  and 
it  is  for  the  court  to  judge  of  the  consequent  evil.  Many 
of  the  cases  cited  import,  and  some  of  them  express,  the 
rule  governing  such  cases.  It  is  not  the  averment  of  the 
pleader,  but  the  nature  of  the  acts  pleaded,  which  is  mate- 
rial on  the  question  of  public  injury.  The  conscience  of 
the  court  must  be  satisfied ;  and  it  may  be  satisfied  or  not, 
with  or  without  averment.  If  an  information  should  aver 
public  mischief,  where  the  court  could  see  that  there  was 
none,  the  averment  would  go  for  nothing.  So,  without 
averment,  it  suffices  that  the  court  can  see  the  public  injury. 
It  was  hardly  questioned  that,  in  these  cases,  a  public  in- 
jury is  apparent  in  the  acts  charged  against  these  defend- 
ants. Directly  or  indirectly,  this  injury  reaches  every  in- 
habitant of  the  state,  and  affects  the  whole  state  in  its  cor- 
porate capacity.  It  was,  indeed,  confidently  foretold  by 
the  counsel  for  the  defendants,  that  obedience  to  the  law 
would  work  a  still  greater  public  injury.  Upon  that  it  is 
not  for  us  to  speculate.  And  if  we  could,  we  cannot  sit  here 
to  offset  a  speculative  injury  arising  from  obedience  of  law, 
against  a  positive  injury  arising  from  disobedience  of  law. 
In  these  days  of  self-judging  insubordination,  it  would  ill 
become  this  court  to  set  so  bad  an  example  of  compromise 
between  right  and  wrong.  We  cannot  look  to  the  conse- 
quences of  legislation.  Let  the  legislature  see  to  that. 
We  have  no  discretion.  We,  at  least,  must  obey  the  law. 
We  can  only  see  the  direct  public  injury.  And  the  acts 
charged  satisfy  the  conscience  of  the  court  of  the  public  in- 
jury. If  the  acts  be  illegal,  that  is  sufficient. 

Whether  an  information  of  this  character  would  lie,  as 
suggested  by  Mr.  Brice,  even  though  no  definite  injury' had 
been  done,  or  was  likely  to  be  done,  to  the  public,  we  are 
not  called  upon  to  decide  in  these  cases. 

III.  These  questions  of  jurisdiction  settled,  still  leave 


319  Attorney  General  v.  Railroad  Cos. 

some  preliminary  matters  to  be  considered,  before  we  can 
reach  the  provisions  of  chapter  273,  of  1874,  which  the 
informations  charge  that  defendants  disregard  and  violate. 

The  act  has  many  provisions  not  material  in  these  causes. 
And  this  is  a  convenient  place  to  state  briefly  the  provisions 
which  are  material  to  any  consideration  involved  here. 
The  act  classifies  all  the  railroads  of  the  state ;  fixes  differ- 
ent maximum  rates  for  passengers  for  each  class  of  roads ; 
classifies  certain  specified  articles  of  freight;  fixes  maxi- 
mum rates  for  each  of  the  classes  of  freight,  differently  af- 
fecting different  classes  of  roads;  provides  civil  remedies 
against  the  companies,  and  penalties  against  their  serv- 
ants, for  taking  greater  rates  than  those  fixed  by  the  act; 
provides  for  railroad  commissioners,  and  gives  them  au- 
thority to  classify  articles  of  freight  not  classified  by  the 
act,  and  to  reduce  rates  of  freight;  and  provides  civil 
remedies  and  penalties  against  the  companies  for  taking 
greater  rates  than  those  fixed  by  the  commissioners. 

It  does  not  appear  that  the  commissioners  have  acted  in 
any  way  under  the  act ;  and  the  question  of  the  validity  of 
their  powers,  is  therefore,  not  here. 

The  act  was  approved  by  the  governor,  March  11.  It 
was  contended  for  the  defendants  that  it  was  repealed  by 
chapters  292  and  341  of  the  same  session;  both  approved 
by  the  governor  March  12.  We  have  informed  ourselves 
that  the  three  acts  passed  the  legislature  in  the  same  order 
in  which  they  were  approved. 

This  is  a  question  of  constructive  repeal.  In  Attorney 
General  v.  Brown,  1  Wis.  513,  this  court  adopted  the  uni- 
form rule  governing  such  cases.  If  there  be  two  affirma- 
tive statutes  upon  the  same  subject,  one  does  not  repeal  the 
other,  if  both  may  consist  together ;  and  we  ought  to  seek 
for  such  a  construction  as  will  reconcile  them  together. 

Section  2  of  chapter  292,  in  which  the  repeal  by  that  act 


Opinions  of  Chief  Justice  Ryan.  320 

is  claimed,  amends  sec.  55  of  the  general  railroad  act  of 
1872.  The  section  amended  provides  that  existing  com- 
panies shall  have  all  the  powers  and  be  subject  to  all  the 
duties  prescribed  by  that  act.  The  amendment  provides 
that  they  shall  have  all  the  powers  of  the  general  railroad 
act  and  of  their  charters.  It  seems  to  us  that  the  inten- 
tion of  the  amendment  is  very  manifest ;  and  it  is  a  ques- 
tion of  legislative  intention.  The  amendment  was  prob- 
ably adopted  ex  abundanti  cautela,  to  remove  any  possible 
doubt  that  the  franchises  of  the  general  act  had  super- 
seded the  franchises  of  existing  charters.  And  the  amend- 
ment is  not  a  grant  of  powers,  but  a  mere  confirmation 
of  powers  previously  granted.  It  left  the  companies 
where  it  found  them.  And  if  chapter  273  be  a  valid  al- 
teration of  railroad  charters  previously  existing,  it  is  no 
more  repealed  by  sec.  2  of  chapter  292,  than  any  other 
previous  amendment  of  such  charters.  The  powers  of  rail- 
road companies  confirmed  by  this  section,  are  those  powers 
of  their  charters,  controlled  by  all  amendments  of  them  and 
other  public  acts  validly  affecting  them,  as  they  existed 
when  the  section  was  passed.  It  is  not  difficult  to  make 
chapters  273  and  292  stand  together. 

Chapter  341  is  an  act  in  relation  to  railroads  with  many 
provisions  for  their  general  government,  perhaps  all  rest- 
ing in  the  police  power  of  the  state.  Amongst  the  rest, 
sec.  9,  under  which  the  repeal  is  claimed,  provides  a  penalty 
against  any  railroad  company  taking  more  than  a  reason- 
able rate  of  compensation.  It  was  claimed  that  this  pro- 
vision licenses  a  reasonable  rate  of  compensation  in  all 
cases,  and  therefore  repeals  the  maximum  rates  specifi- 
cally fixed  by  chapter  273.  There  are  three  answers  to  this : 

First.  Chapter  273  limits  the  companies  to  the  maximum 
rates  provided,  but  does  not  expressly  license  them  to  exact 


321  Attorney  General  v.  Railroad  Cos. 

those  full  rates.  And  it  might  well  happen,  and  the  leg- 
islature may  have  so  considered,  that  rates  then  reasonable 
might,  in  change  of  circumstances,  become  unreasonable; 
and  that  these  companies  continuing  to  charge  the  full 
maximum  rates  might  be  charging  unreasonable  rates. 

Secondly.  The  act  provides  no  fixed,  statutory  rates  of 
freight  for  class  C  of  roads.  This  class  is  forbidden  to 
charge  more  than  in  June,  1873,  which  might  be  an  un- 
reasonable rate.  And  it  includes  all  railroads  not  included 
in  classes  A  and  B,  and  might  therefore  well  include  roads 
not  operated  in  June,  1873,  which  would  have  no  limit  of 
rates  of  freight  under  the  act.  Here  is  ample  scope  for 
sec.  9  of  ch.  341,  without  disturbing  the  fixed  rates  of 
ch.  273. 

Thirdly.  Chapter  273  does  not  assume  to  fix  rates  for  all 
traffic  on  railroads.  The  commissioners  might  not  fix  the 
remaining  rates,  or  might  delay  in  doing  so,  or  might  nat- 
urally, by  inadvertencies,  omit  articles  of  freight  in  their 
classification.  Here  again  is  subject  for  sec.  9  of  ch.  341 
to  act  upon,  applying  the  rule  of  reasonable  compensation. 

It  must  be  admitted  that  this  looks  like  careless  and  slov- 
enly legislation.  But  either  of  these  views  is  one  which  we 
are  bound  to  seek,  and  which,  seeking,  we  readily  find,  to 
reconcile  the  two  acts  and  make  them  consist  together. 

The  question  of  constructive  repeal  is  one  of  legislative 
intent.  The  three  acts  were  passed  within  two  successive 
days,  and  must  have  been  pending  together.  And  it  is  not 
possible  to  believe  that  the  legislature  intended  to  defeat 
the  operation  of  ch.  273  by  the  other  acts,  going  through 
the  forms  of  legislation  contemporaneously  with  it  And 
this  question  of  intent  seems  to  us  to  be  absolutely  deter- 
mined by  the  passage  of  joint  resolution  No.  11,  delaying 
the  publication  of  ch.  273,  so  that  it  could  not  become  a  law 
21 


Opinions  of  Chief  Justice  Ryan.  322 

until  after  chapters  292  and  341  had  taken  effect  as  laws; 
so  that  the  constructive  repeal  should  precede,  not  follow, 
the  act  repealed.  The  resolution,  and  the  consequent  order 
of  publication  of  the  three  acts,  seem  to  us  not  only  to  dem- 
onstrate that  the  legislature  intended  no  repeal,  but  might 
possibly  have  had  the  effect,  if  there  must  be  a  repeal,  of 
making  chapter  273,  as  the  later  act,  repeal  sec.  2  of  ch. 
292,  and  sec.  9  of  ch.  341. 

It  was  contended  by  the  Chicago,  Milwaukee  &  St.  Paul 
Company,  that  it  is  not  in  class  A  of  railroads,  because  the 
corporation  in  that  class  is  called  the  Milwaukee  &  St.  Paul 
Company;  whereas  the  defendant  had  just  one  month  be- 
fore added  the  prefix,  Chicago,  to  its  name,  under  a  statute 
authorizing  such  change  of  name.  This  was  merely  as- 
suming an  alias  dictus,  not  changing  the  body  nor  wholly 
changing  its  name.  It  had  been  called  by  one  name  and 
chose  to  be  called  by  another,  very  similar;  differing  only 
by  the  addition  of  one  word,  as  a  sort  of  prcenomen.  These 
facts  are  pleaded  on  both  sides.  The  information  avers 
that  there  had  been  no  other  corporation  of  the  name  used 
in  the  chapter,  and  the  answer  cannot  be  held  to  deny 
it,  though  there  is  a  qualified  general  denial.  Sexton  v. 
Ehames,  13  Wis.  99 ;  Allis  v.  Sabine,  1Y  Wis.  626.  In- 
deed we  think  that  there  is  a  presumption  that  there  is  no 
other  corporation  of  the  name.  We  have  therefore  little 
difficulty  in  holding  that  the  corporation  named  in  the  act 
is  the  defendant  It  is  said  that  we  cannot  resort  to  evi- 
dence aliunde  to  ascertain  the  corporation  intended  by  the 
act.  Probably  not,  but  we  do  not  need  any.  We  can,  how- 
ever, look  into  the  laws  of  the  state  to  solve  the  question. 
In  another  case  of  misnomer  of  a  corporation,  this  court 
held,  "that  the  objections  to  the  act  are  too  technical  and 
evasive.  Legislative  enactments  are  not  to  be  defeated  on 


323  Attorney  General  v.  Railroad  Cos. 

account  of  mistakes,  errors  or  omissions,  any  more  than 
other  writings,  provided  the  intention  of  the  legislature  can 
be  ascertained  from  the  whole  act."  The  court  might  well 
have  added,  but  that  it  was  not  there  necessary,  that  it  could 
equally  look  into  other  acts  in  pari  materia,  as  the  rule  is. 
Nazro  v.  Merchant's  M.  Ins.  Co.,  14  Wis.  295.  This  act, 
by  the  name  it  uses,  intended  some  corporation;  there  is 
no  other  but  this,  and  this  had  lately  been  designated  by 
the  name  used.  And  we  find  for  years  before,  acts  grant- 
ing powers  to  the  Milwaukee  &  St.  Paul  Railway  Com- 
pany claimed  here  in  its  answer  by  this  defendant.  We 
find  a  grant  of  power  to  it,  passed  at  the  same  session  and 
approved  by  the  same  governor,  March  10,  the  day  before 
chapter  273.  We  find  no  trace  in  the  statutes  of  any  other 
corporation  by  either  of  the  alias  dicti  of  this  defendant. 
We  should  assuredly  hold  it  entitled  to  the  grant  of 
March  10,  and  we  will  hold  it  subject  to  the  act  of  March  11. 
We  should  be  ashamed  to  sit  here  and  suffer  the  law  to  fail, 
where  the  design  of  the  legislature  is  so  apparent,  through 
so  mere  a  verbal  quibble  on  so  mere  a  verbal  accident. 

Rex  v.  Croke,  1  Cowper,  29,  cited  by  the  defendant,  goes 
upon  a  confusion  of  things,  not  of  names ;  one  designating, 
as  Lord  Mansfield  says,  the  corporation  at  large ;  the  other, 
a'  select  body.  And  in  People  v.  Oakland  Co.  Bank,  1  Doug- 
lass, 282,  also  cited,  the  names  of  the  corporation  chartered 
and  of  the  corporation  repealed  were  so  essentially  differ- 
ent, that  the  court  could  not  gather  the  legislative  inten- 
tion. The  court  says:  "It  is  not  intended  to  assert  that 
there  should  be  an  exact  correspondence  between  the  act 
creating  and  the  one  repealing  a  corporate  charter,  so  far 
as  the  name  of  the  corporation  is  concerned.  All  that  is 
required  is,  that  the  repealing  act  should  indicate  with  suffi- 
cient clearness  the  name  of  the  corporation  intended.  There 


Opinions  of  Chief  Justice  Ryan.  324 

should  be  sueh  a  correspondence  as  to  leave  no  doubt  of  the 
intention  of  the  legislature."  There  is  surely  such  a  corre- 
spondence here. 

We  imply  no  censure  on  any  of  the  distinguished  counsel 
who  argued  these  motions  with  so  much  professional  abil- 
ity. We  allude  to  the  defendants  when  we  say,  that  we  are 
constrained  to  regard,  some  of  these  points  last  considered, 
as  unworthy  of  these  causes.  And,  while  we  are  not  dis- 
posed to  censure  them  for  litigating  the  main  questions  in- 
volved, these  petty  points  could  not  fail  to  remind  us  of  the 
pungent  criticism  of  Lord  Langdale,  in  Brown  v.  Mon- 
mouth  R.  &  C.  Co.,  on  such  technical  points  introduced  by 
other  great  corporations  into  other  great  litigations. 

IY.  A  question  was  made  on  the  argument,  of  the  effect 
of  the  constitutional  amendment  of  18Y1  upon  sec.  1,  art. 
XI,  of  the  constitution. 

The  provision  of  the  constitution,  as  first  framed,  was, 
that  corporations  might  be  formed  under  general  laws,  but 
not  by  special  acts,  except  in  cases  where  the  legislature 
should  judge  that  the  objects  could  not  be  attained  by  gen- 
eral laws ;  and  that  such  general  laws  or  special  acts  might 
be  altered  or  repealed  at  any  time. 

Of  the  first  clause  of  this  section  it  was  said :  "It  seems 
very  obvious,  on  the  face  of  the  provision,  that  it  aimed 
at  the  evils  of  special  legislation.  The  provision  is  against 
creating  corporations  by  special  acts."  "It  is  doubtful 
also  whether  this  clause  can,  at  best,  be  regarded  as  any- 
thing more  than  directory  to  the  legislature,  as  it  leaves  the 
whole  matter,  after  all,  to  its  judgment."  Clark  v.  Janes- 
ville,  10  Wis.  119. 

And,  as  a  directory  provision,  it  proved  to  be  largely  un- 
availing, as  our  statute  books  abundantly  show.  Therefore 
came  the  amendment  of  1871,  prohibiting  special  legisla- 


325  Attorney  General  v.  Railroad  Cos. 

tion  in  this  and  other  cases.  This  amendment  prohibits 
the  legislature  from  passing  special  laws,  amongst  otter 
purposes,  for  granting  corporate  powers  or  privileges,  ex- 
cept to  cities ;  and  directs  that  the  legislature  shall  provide 
general  laws  for  purposes  for  which  special  acts  are  so  pro- 
hibited, which  shall  be  uniform  throughout  the  state. 

It  was  contended  that  this  amendment,  prohibiting  the 
grant  of  corporate  powers  by  special  act,  operates  as  a  re- 
peal of  the  reserved  power  of  altering  existing  special  char- 
ters by  special  acts ;  that  the  prohibition  to  grant  corporate 
powers  includes,  not  only  the  creation  of  new  corporations, 
but  also  the  grant  of  new  powers  to  existing  corporations, 
and  by  inference  the  limitation  or  regulation  of  existing 
corporate  powers,  by  special  acts ;  and  so  confines  reserved 
power  to  alter  special  charters,  to  general  laws. 

The  difficulty  of  altering  special  charters  by  general 
laws,  which  shall  be  uniform  throughout  the  state,  is  very 
apparent.  And  if  this  were  the  true  construction  of  the 
amendment,  it  would  almost  follow  that  special  charters 
could  no  longer  be  repealed  by  special  acts,  and  that  the 
whole  reserved  power  was  relegated  to  general  laws.  It  was 
even  said  by  counsel  that  the  charter  of  a  corporation,  or- 
ganized under  general  law,  could  be  repealed  only  by  re- 
peal of  the  general  law;  so  that  one  corporation  of  one 
kind  could  not  be  subjected  to  repeal  without  repealing  the 
charters  of  all  corporations  of  the  same  kind  under  the 
same  general  law.  This  is  almost  an  argument  ad  ab- 
surdum.  And  it  is  all  a  very  inconvenient  and,  we  may 
say,  dangerous  construction,  which  we  should  be  very  un- 
willing to  adopt. 

We  shall  not  stop  to  dwell  here  on  the  importance  of  the 
reserved  power.  We  may  do  that  later,  in  a  more  .appro- 
priate connection.  We  shall  only  assume  here  that  it  is  a 


Opinions  of  Chief  Justice  Ryan.  326 

power  of  great  significance  and  gravity ;  of  such  moment, 
that  it  is  impossible  to  believe  that  the  legislature  and  the 
people  intended  to  surrender  or  impair  it ;  very  hard  to  be- 
lieve that  they  suffered  themselves  to  surrender  or  impair 
it,  by  implication,  in  an  amendment  designed  for  quite  a 
different  purpose,  quite  consistent  with  the  reserved  power. 

But  the  purpose  of  the  amendment,  so  far  as  it  affects 
sec.  1,  art.  XI,  appears  to  us  very  manifest.  It  was  de- 
signed to  act  on  the  first  clause  only  of  the  section,  taking 
away  the  legislative  discretion  and  changing  the  directory 
provision  into  a  prohibitory  one ;  and  not  to  touch  the  sec- 
ond clause  of  the  section  at  all,  leaving  the  reserved  power 
where  it  found  it,  to  be  exercised  thereafter  as  theretofore, 
upon  special  charters,  by  special  acts.  The  amendment  is 
prospective  only,  not  retrospective.  It  prohibits  an  old  way 
and  provides  a  new  way  of  creating  corporations,  but  was 
not  designed  to  effect  existing  corporations  in  any  way.  If 
it  could  operate  to  take  away  legislative  control  over  ex- 
isting charters,  it  might  well  be  argued — --as  it  was  in  Indi- 
ana— that  it  operates  to  repeal  them  altogether. 

We  can  see  nothing  in  the  letter  or  spirit  of  the  amend- 
ment to  warrant  us  in  giving  it  a  construction  to  impair  the 
reserved  power.  Under  the  rule  of  constructive  repeal,  we 
are  bound  to  give  such  construction  to  these  constitutional 
provisions,  as  will  leave  both  to  stand  together.  It  is  not 
for  us  to  wrest  so  great  a  power  from  the  legislature,  by 
construction,  unless  the  legislature  and  the  people  have 
made  such  construction  inevitable.  And  we  feel  bound  to 
hold,  and  find  no  difficulty  in  holding,  the  phrase  in  the 
amendment,  to  grant  corporate  powers  or  privileges,  to 
mean  in  principio  donationis,  and  equivalent  to  the  phrase, 
to  grant  corporate  charters.  This  is  implied  not  only  by  the 
word  grant,  but  also  by  the  word  corporate.  A  franchise 


327  Attorney  General  v.  Railroad  Cos. 

is  not  essentially  corporate ;  and  it  is  not  the  grant  of  fran- 
chise which  is  prohibited,  but  of  corporate  franchise ;  that 
is,  as  we  understand  it,  franchise  by  act  of  incorporation. 

There  are  cases  in  Iowa  with  some  bearing  on  this  ques- 
tion, which  are  not  cited,  but  which  we  have  carefully  con- 
sidered. 

The  constitution  of  that  state,  of  1857,  art.  Ill,  sec.  30, 
prohibits  local  or  special  laws  in  certain  cases;  among 
these,  for  the  incorporation  of  cities  and  towns;  and  pro- 
vides that,  in  the  cases  enumerated,  all  laws  shall  be  gen- 
eral and  uniform  throughout  the  state. 

In  Ex  parte  Pritz,  9  Iowa,  30,  Davis  v.  Woolnough,  9 
Iowa,  104,  and  McGregor  v.  Baylies,  19  Iowa,  44,  the  su- 
preme court  held  that,  under  the  clause  of  their  constitu- 
tion mentioned,  the  legislature  had  not  power  by  special 
act  to  amend  city  or  town  charters,  existing  by  special  act 
at  the  time  of  the  adoption  of  the  constitution.  With  great 
respect  for  that  court,  we  should  hesitate  long  before  con- 
curring in  the  reasoning  or  adopting  the  rule  of  those  cases. 
And  the  more  so,  because  in  Von  Phul  v.  Hammer,  29 
Iowa,  222,  that  court  also  held  that,  although  the  legislau 
ture  could  not  amend  existing  charters,  yet  every  corpora- 
tion of  the  kind  might  amend  its  own  charter,  under  a 
power  in  the  general  law.  But  we  need  not  consider  the 
reasoning  of  the  Iowa  cases,  because  we  can  not  consider 
them  applicable  here.  There  is  no  equivalent  in  their  con- 
stitution for  the  reserved  power  in  ours,  to  enter  into  or 
control  the  construction  of  the  clause  in  question. 

The  constitution  of  Indiana,  1851,  art.  IV,  sec.  22,  has 
a  similar  prohibitory  clause  of  special  legislation  in  speci- 
fied cases,  including  laws  for  the  punishment  of  crime  and 
misdemeanors;  and  a  similar  provision  for  general  laws 
uniform  throughout  the  state.  And  the  question  came  be- 


Opinions  of  Chief  Justice  Ryan.  328 

fore  the  supreme  court,  whether  a  law  punishing  certain 
misdemeanors,  local  in  its  application  and  not  uniform 
throughout  the  state,  and  therefore  in  conflict  with  the  con- 
stitutional provision  adopted,  but  which  was  in  force  at  the 
time  of  the  adoption  of  the  constitution,  was  not  repealed 
by  the  constitution.  But  the  court  held,  without  difficulty, 
that  the  constitutional  requirement  was  prospective,  and 
did  not  apply  to  laws  passed  before  its  adoption.  State  v. 
Barbee,  3  Porter,  358.  This  is  an  aid  to  our  construction. 

We  hold  the  amendment  of  1871  to  relate  to  future  cor- 
porations, and  to  leave  existing  corporations  under  the  orig- 
inal provision  of  the  constitution;  and  that,  as  to  the  ex- 
isting corporations,  the  reserved  power  to  alter  or  repeal 
remains  unimpaired. 

V.  The  maximum  rates  of  chapter  273,  of  1874,  ex- 
pressly apply  to  the  railroads  of  the  defendants.  The  de- 
fendants plead  various  antecedent  charters,  with  express 
power  to  take  toll,  without  express  limitation.  The  exact 
language  differs  in  different  charters ;  but  the  substance  is, 
we  believe,  alike  in  all :  power  to  exact  tolls  in  the  discre- 
tion of  the  company,  not  essentially  different  from  the 
power  in  the  general  railroad  act  of  1872. 

And  the  defendants  thereupon  insist  that  the  limitation 
of  those  powers  in  their  charters,  by  the  fixed  rates  of  chap- 
ter 273,  impairs  the  obligation  of  the  contract  of  their 
charters,  and  is,  therefore,  in  violation  of  the  provision  of 
the  constitution  of  the  United  States,  art.  I,  sec.  10,  subd.  1, 
which  provides  that  no  state  shall  pass  any  bill  of  attainder, 
ex  post  facto  law,  or  law  impairing  the  obligation  of  con- 
tracts. 

The  construction  and  application  of  this  clause  by  the 
supreme  court  of  the  United  States  are  certain  and  defined, 
and  are,  of  course,  beyond  the  reconsideration  of  this  court. 


329  Attorney  General  v.  Railroad  Cos. 

But  a  brief  review  of  the  clause  and  its  construction  is  not 
irrelevant  to  the  questions  before  us. 

Mr.  Madison,  Federalist,  No.  43,  thus  explains  the  policy 
and  objects  to  this  provision:  "Bills  of  attainder,  ex  post 
facto  laws,  and  laws  impairing  the  obligation  of  contracts, 
are  contrary  to  the  first  principles  of  the  social  compact, 
and  to  every  principle  of  sound  legislation.  The  two  for- 
mer are  expressly  prohibited  by  declarations  prefixed  to 
some  of  the  state  constitutions,  and  all  of  them  are  pro- 
hibited by  the  spirit  and  scope  of  those  fundamental  char- 
ters. Our  own  experience  has  taught  us,  nevertheless,  that 
additional  fences  against  these  dangers  ought  not  to  be 
omitted.  Very  properly,  therefore,  have  the  convention 
added  this  constitutional  bulwark  in  favor  of  personal  se- 
curity and  private  rights;  and  I  am  much  deceived  if  they 
have  not,  in  so  doing,  as  faithfully  consulted  the  genuine 
sentiments  as  the  undoubted  interests  of  their  constituents. 
The  sober  people  of  America  are  weary  of  the  fluctuating 
policy  which  has  directed  the  public  councils.  They  have 
seen,  with  regret  and  indignation,  that  sudden  changes  and 
legislative  interferences  in  cases  affecting  private  rights, 
become  jobs  in  the  hands  of  enterprising  and  influential 
speculators,  and  snares  to  the  more  industrious  and  less  in- 
formed part  of  the  community.  They  have  seen,  too,  that 
one  legislative  interference  is  but  the  first  link  of  a  long 
chain  of  repetitions;  every  subsequent  interference  being 
naturally  produced  by  the  effects  of  the  preceding.  They 
very  rightly  infer,  therefore,  that  some  thorough  reform  is 
wanting,  which  will  banish  speculations  in  public  meas- 
ures, and  inspire  a  general  prudence  and  industry,  and  give 
a  regular  course  to  the  business  of  society." 

If  this  be,  as  may  be  safely  inferred,  the  sense  in  which 
the  prohibition  was  adopted,  it  is  very  certain  that  its  f  ram- 


Opinions  of  Chief  Justice  Ryan.  330 

ers"  did  not  foresee  or  intend  the  uses  to  which  it  has  been 
put.  So,  indeed,  Chief  Justice  Marshall  himself  admits, 
in  his  opinion,  in  the  leading  case.  4  Wheaton,  644. 

As  early  as  1810,  the  supreme  court  of  the  United  States 
held  that  an  act  of  a  state  legislature  might  be  a  contract 
within  the  meaning  of  the  prohibition,  and  therefore  be- 
yond subsequent  legislative  control.  Fletcher  v.  Peck,  6 
Cranch,  87. 

In  1819,  the  same  great  tribunal  held  that  the  charter 
of  any  corporation,  not  municipal,  was  a  contract  within 
the  prohibition,  which  the  legislature  could  not  impair,  by 
subsequent  amendment  against  the  will  of  the  corporation. 
.Dartmouth  College  v.  Woodward,  4  Wheaton,  518.  And 
that  remains  the  law  of  the  land  to  this  day. 

It  is  easy  to  criticise  the  decision;  to  say  that  the  very 
point  was  not  in  the  case ;  to  impeach  the  reasoning  of  the 
opinions.  Many  able  jurists  and  statesmen  have  done  so 
and  are  doing  so.  It  is  easy  to  foretell  that  the  case  will 
be  opened.  Many  do  so.  Here  is  one  of  the  latest  and  most 
thoughtful  of  such  speculations : 

"Some  of  those  who  think  it  would  have  been  better  had 
the  case  been  decided  the  other  way,  may  reasonably  con- 
demn any  attempt  to  unsettle  a  branch  of  the  law  so  long 
established.  But  the  murmuring  at  the  whole  doctrine, 
which  is  beginning  to  be  heard  throughout  the  country ;  the 
restless,  fitful  desire  to  get  rid  of  it,  not  yet  fully  under- 
stood by  themselves,  which  large  classes  of  people  begin 
to  feel,  indicates  that  the  whole  subject  must,  at  no  dis- 
tant day,  be  carefully  re-examined.  Any  decision  in  an 
ordinary  case  ought,  as  a  rule,  to  stand;  and  when  a  de- 
cision has  stood  for  fifty  years,  even  to  question  it  lightly 
and  without  sufficient  consideration,  is  injurious  and  cen- 
surable, as  tending  to  unsettle  an  entire  system  of  juris- 


Attorney  General  v.  Railroad  Cos. 

prudence.  But  constitutional  decisions  which  take  from  the 
political  department  of  government  powers  and  preroga- 
tives usually  belonging  to  it,  and  which  legislation  cannot 
remedy,  stand  on  a  different  footing  from  ordinary  prec- 
edents involving  questions  of  private  rights.  Fifty  years 
is  a  short  period  in  the  history  of  a  nation  living  under  a 
constitution  intended  to  be  perpetual.  The  consequences 
of  the  Dartmouth  College  case  are  now  beginning  to  press 
heavily  on  great  communities,  and  the  pressure,  we  believe, 
will  increase  rather  than  diminish.  It  involves  questions 
of  political  power,  political  necessity,  it  may  yet  be  of  polit- 
ical safety,  and  the  case  will  not  be  let  alone,  however  wise 
it  might  be  to  do  so."  8  American  Law  Review,  191. 

The  court  was  not  unanimous  in  the  Dartmouth  Col- 
lege case,  and  has  not  always  been  unanimous  in  subsequent 
cases  applying  the  rule.  Indeed  it  is  a  constant  tradition 
of  the  profession,  that  the  bench  has  never  since  been  unan- 
imous on  the  full  extent  of  the  doctrine  of  that  case. 

The  spirit  of  the  decision,  and  the  grounds  on  which  it 
goes,  are  best  found  in  the  opinions  of  the  judges  who 
made  it. 

Chief  Justice  Marshall  says:  "It  has  been  argued  that 
the  word  'contract,'  in  its  broadest  sense,  would  comprehend 
the  political  relations  between  the  government  and  its  citi- 
zens, would  extend  to  offices  held  within  a  state  for  state 
purposes,  and  to  many  of  those  laws  concerning  civil  insti- 
tutions, which  must  change  with  circumstances,  and  be 
modified  by  ordinary  legislation,  which  deeply  concern  the 
public,  and  which,  to  preserve  good  government,  the  public 
judgment  must  control.  That  the  clause  in  the  constitu- 
tion, if  construed  in  its  greatest  latitude,  would  prohibit 
these  laws.  Taken  in  its  broad,  unlimited  sense,  the  clause 
would  be  an  unprofitable  and  vexatious  interference  with 


'Opinions  of  Chief  Justice  Ryan.  332 

the  internal  concerns  of  a  state,  would  unnecessarily  and 
unwisely  embarrass  its  legislation,  and  render  immutable 
those  civil  institutions  which  are  established  for  the  pur- 
pose of  internal  government,  and  which,  to  subserve  those 
purposes,  ought  to  vary  with  varying  circumstances.  That, 
as  the  framers  of  the  constitution  could  never  have  in- 
tended to  insert  in  that  instrument  a  provision  so  unneces- 
sary, so  mischievous,  and  so  repugnant  to  its  general 
spirit,  the  term  'contract'  must  be  understood  in  a  more 
limited  sense.  That  it  must  be  understood  as  intended  to 
guard  against  a  power  of  at  least  doubtful  utility,  the 
abuse  of  which  had  been  extensively  felt,  and  to  restrain 
the  legislature  in  future  from  violating  the  right  to  prop- 
erty. That  anterior  to  the  formation  of  the  constitution, 
a  course  of  legislation  had  prevailed  in  many,  if  not  all, 
of  the  states,  which  weakened  the  confidence  of  man  in 
man,  and  embarrassed  all  transactions  between  individ- 
uals, by  dispensing  with  the  faithful  performance  of  en- 
gagements. To  correct  this  mischief  by  restraining  the 
power  which  produced  it,  the  state  legislatures  were  for- 
bidden 'to  pass  any  law  impairing  the  obligation  of  con- 
tracts,' that  is,  of  contracts  respecting  property,  under 
which  some  individual  could  claim  a  right  to  something 
beneficial  to  himself ;  and  that,  since  the  clause  in  the  con- 
stitution must,  in  construction,  receive  some  limitation,  it 
may  be  confined,  and  ought  to  be  confined,  to  cases  of  this 
description;  to  cases  within  the  mischief  it  was  intended 
to  remedy. 

"The  general  correctness  of  these  observations  cannot  be 
•controverted.  That  the  framers  of  the  constitution  did  not 
intend  to  restrain  the  states  in  the  regulation  of  their  civil 
institutions,  adopted  for  internal  government,  and  that  the 
instrument  they  have  given  us  is  not  to  be  BO  construed, 


333  Attorney  General  v.  Railroad  Cos. 

may  be  admitted.  The  provision  of  the  constitution  has 
never  been  understood  to  embrace  other  contracts  than 
those  which  respect  property,  or  some  object  of  value,  and 
confer  rights  which  may  be  asserted  in  a  court  of  justice." 

If  property,-  as  the  great  chief  justice  indicates,  be  the 
test,  it  might  well  be  said  that  aggregations  of  persons  in 
municipal  corporations  may  have  rights  of  property  as 
clearly  as  aggregations  of  persons  in  private  corporations, 
and  come  as  well  within  the  prohibitions.  So  the  court 
afterward  found  in  East  Hartford  v.  Hartford  Bridge  Co., 
10  Howard,  511,  and  other  cases,  in  which  the  court  dis- 
regards the  property  test,  and  rests  the  application  of  the 
rule  on  the  distinction  between  public*  and  private  corpora- 
tions. See  Charles  River  Bridge  v.  Warren  Bridge,  11 
Peters,  420.  And  so  of  offices,  it  might  well  be  suggested 
that  the  emoluments  of  public  office,  conferring  rights 
which  may  be  asserted  in  a  court  of  justice,  might  logically 
come  within  the  property  test. 

Mr.  Justice  Story,  another  great  name  which  has  re- 
flected its  lustre  on  this  decision,  says :  "Another  division 
of  corporations  is  into  public  and  private.  Public  corpo- 
rations are  generally  esteemed  such  as  exist  for  public  pur- 
poses only,  such  as  towns,  cities,  parishes  and  counties; 
and  in  many  respects  they  are  so,  although  they  involve 
some  private  interests ;  but  strictly  speaking,  public  corpo- 
rations are  such  only  as  are  founded  by  the  government  for 
public  purposes,  where  the  whole  interests  belong  to  the 
government.  If,  therefore,  the  foundation  be  private, 
though  under  the  charter  of  the  government,  the  corpora- 
tion is  private,  however  extensive  the  uses  may  be  to  which 
it  is  devoted,  either  by  the  bounty  of  the  founder,  or  the 
nature  and  objects  of  the  institution.  For  instance,  a  bank 
created  by  the  government  for  its  own  uses  whose  stock  is» 


Opinions  of  Chief  Justice  Ryan.  334 

owned  exclusively  by  the  government,  is,  in  the  strictest 
sense,  a  public  corporation.  So  an  hospital  created  and  en- 
dowed by  the  government  for  general  charity.  But  a  bank 
whose  stock  is  owned  by  private  persons,  is  a  private  cor- 
poration, although  it  is  erected  by  the  government,  and  its 
objects  and  operations  partake  of  a  public  nature.  The 
same  doctrine  may  be  affirmed  of  Insurance,  Canal,  Bridge 
and  Turnpike  Companies.  In  all  these  cases,  the  uses  may, 
in  a  certain  sense  be  called  public,  but  the  corporations  are 
private;  as  much  so  as  if  the  franchises  were  vested  in  a 
single  person." 

It  is  difficult,  at  this  day,  to  recognize  the  sound  policy 
of  this  strict  distinction  between  municipal  and  all  classes 
of  quasi  private  corporations,  or  to  appreciate  the  wisdom 
which  admits  the  necessity  of  legislative  control  over  all 
municipal  corporations  of  every  grade  and  nature,  and  de- 
nies it  to  all  other  corporations  of  every  grade  and  nature. 
It  is  quite  safe  to  say  that  in  this  state  of  Wisconsin,  each 
of  these  defendants,  a  private  corporation  for  the  purposes 
of  this  rule  and  placed  by  it  above  legislative  control  of 
its  franchises,  directly  exercises,  to  say  nothing  of  its  in- 
direct influence,  more  power  over  the  public  interests  of 
the  state,  over  the  public  welfare  and  prosperity  of  the 
state,  over  the  commonwealth,  than  the  largest  munici- 
pality in  the  state  with  its  90,000  or  100,000  souls.  The 
state  entrusts  it  with  the  exercise  of  sovereign  right  of  emi- 
nent domain,  with  the  construction  and  operation  for  pub- 
lic purposes  of  hundreds  of  miles  of  public  thoroughfare 
of  the  most  dangerous  character  to  public  safety,  with  a 
virtual  monopoly  within  its  district  of  the  carrying  trade, 
with  almost  a  control  of  all  commerce  within  its  reach,  and 
a  power  almost  of  life  and  death  over  its  people — and  yet 
it  is  a  private  corporation,  whose  charter  the  legislature 


335  Attorney  General  v.  Railroad  Cos. 

cannot  control;  while  the  most  insignificant  town  in  the 
state,  with  no  extra-territorial  influence  and  hardly  any 
extra-territorial  recognition,  is  invested  with  the  dignity  of 
a  public  corporation,  over  which  it  is  unsafe  to  deny  legis- 
lative control. 

It  is  not  to  be  overlooked  that  the  decision  was  made 
long  before  the  era  of  great  corporations  in  this  country, 
long  before  what  were  then  private  corporations  had  be- 
come of  more  public  significance  than  municipal  corpora- 
tions were  then,  long  before  our  present  civilization  hinged 
almost  as  much  on  quasi  private  corporations,  as  Hallam 
says  early  modern  civilization  did  on  municipal  corpora- 
tions; before  Judge  Story  had  lived  to  see  a  bank,  which 
he  defined  to  be  a  private  corporation,  notwithstanding  its 
public  relations,  wage  war,  unequal  at  last,  but  long  doubt- 
ful war,  with  the  federal  government  itself.  The  diffi- 
culty arises  probably  from  applying  old  names  to  new 
things ;  applying  the  ancient  definition  of  private  corpora- 
tions to  corporations  of  a  character  unknown  when  the  defi- 
nition arose,  corporations  of  such  great  and  various  public 
relation  and  public  significance ;  a  definition  which,  as  ap^ 
plied  to  them,  is  wearing  out,  so  that  courts  are  beginning 
to  call  them  quasi  private  corporations  and  quasi  public 
corporations,  as  in  truth  they  are. 

The  remarks  since  made,  from  time  to  time,  on  this  de- 
cision, by  the  court  which  made  and  has  always  hitherto 
sustained  it,  are  perhaps  the  severest  commentary  upon 
it,  in  the  broad  sense  in  which  it  is  applied.  It  deprives 
the  states  of  a  large  measure  of  their  sovereign  prerogative, 
and  establishes  great  corporations  as  independent  powers 
within  the  states,  a  sort  of  imperia  in  imperils,  baffling- 
state  order,  state  economy,  state  policy.  Well  might  a  dis- 
tinguished judge  of  the  same  court,  when  the  extent  of  the 


Opinions  of  Chief  Justice  Ryan.  336- 

evil  was  becoming  apparent,  start  back,  shocked  at  the 
claims  of  corporate  immunity  from  law,  and  cry  out : 

"N"o  state,  it  is  declared,  shall  pas§  a  law  impairing  the 
obligation  of  contracts ;  yet  with  this  concession  constantly 
yielded,  it  cannot  be  justly  disputed  that  in  every  political 
sovereign  community  there  inheres  necessarily  the  right 
and  the  duty  of  guarding  its  own  existence,  and  of  pro- 
tecting and  promoting  the  interests  and  welfare  of  the  com- 
munity at  large.  This  power  and  this  duty  are  to  be  ex- 
erted not  only  in  the  highest  acts  of  sovereignty  and  in  the 
external  relations  of  governments ;  they  rea'ch  and  compre- 
hend likewise  the  interior  polity  and  relations  of  social  life, 
which  should  be  regulated  with  reference  to  the  advantage 
of  the  whole  society."  And  he  adds,  speaking  of  the  right 
of  eminent  domain :  "It  would  imply  an  incredible  fatuity 
in  the  states  to  ascribe  to  them  the  intention  to  relinquish 
the  power  of  self-government  and  self-preservation."  West 
River  Bridge  Co.  v.  Dix,  6  Howard,  507. 

It  was  lately  said  by  the  same  court,  speaking  of  this 
construction  and  application  of  the  constitutional  prohibi- 
tion :  "A  departure  from  it  now  would  involve  damage  to 
society  that  cannot  be  foreseen;  would  shock  the  sense  of 
justice  of  the  country,  unhinge  its  business  interests,  and 
weaken,  if  not  destroy,  that  respect  which  has  always  been 
felt  for  the  judicial  department  of  the  government."  Bing- 
hamton  Bridge,  3  Wallace,  51.  Perhaps  so;  there  is  al- 
ways inconvenience  and  sometimes  danger  in  abandoning 
old  rules  of  judicial  decision.  But  there  is  danger  in  ad- 
hering to  this  rule.  And  it  is  not  always  the  better  part 
of  wisdom  to  bear  the  ills  we  have,  than  fly  to  others  that 
we  know  not  of.  And  it  must  be  conceded  that  the  lan- 
guage of  the  court,  just  quoted,  sounds  rather  like  apology 
than  justification. 


337  Attorney  General  v.  Railroad  Cos. 

Be  all  this  as  it  may,  the  rule  in  Dartmouth  College  v. 
Woodward  stands,  and  we  must  all  yield  to  it  while  it  does 
stand.  Neither  this  nor  any  state  court  can  disregard  or 
evade  it,  while  the  court  which  established  it  may  see  fit  to 
adhere  to  it.  And  the  rule  that  corporate  charters  are  con- 
tracts within  the  prohibition,  has  been  expressly  applied  by 
that  court  to  railroad  charters.  Wilmington  R.  R.  v.  Reid, 
13  Wallace,  264;  Humphrey  v.  Pegues,  16  id.  244. 

And  we  have  given  some  brief  history  of  the  rule,  and 
of  its  application  and  its  mischief,  not  for  any  purpose  of 
combating  it,  but  for  the  purpose  of  showing  the  signifi- 
cance and  scope  of  the  reserved  power  over  corporate  char- 
ters in  our  state  constitution.  For  the  very  purpose  of 
that  reservation  of  power  was  to  exclude  the  rule  from  all 
application  to  corporate  charters  in  this  state,  and  to  re- 
store to  the  state  all  its  otherwise  inherent  authority  over 
its  own  corporations. 

This  court  has  several  times  had  occasion  to  discuss  this 
reserved  power,  as  one  well  understood  and  of  undoubted 
efficiency.  Madison  W.  &  M.  Plank  Road  Co.  v.  Reynolds, 
3  Wis.  287 ;  Pratt  v.  Brown,  id.  603 ;  Nazro  v.  Merchants' 
M.  Ins  Co.,  14  id.  295 ;  Kenosha,  R  &  R.  I.  R.  R.  Co.  v. 
Marsh,  17  id.  13 ;  Blair  v.  Milwaukee  &  P.  du  C.  R.  R. 
Co.,  20  id.  254;  Whiting  v.  Sheboygan  &  F.  du  L.  R.  R. 
Co.,  25  id.  167;  State  v.  Milwaukee  Gas  L.  Co.,  29  id. 
454 ;  Chapin  v.  Crusen,  31  id.  209 ;  West  Wisconsin  R.  R. 
Co.  v.  Trempealeau,  35  Wis.  257. 

As  long  ago  as  1854,  six  years  after  the  adoption  of  the 
constitution,  Mr.  Justice  Smith  observed  in  Pratt  v.  Brown, 
supra:  "In  all  instances,  however,  in  which  this  power  to 
take  private  property  for  public  use  has  been  delegated  to 
corporations,  the  parties  interested  in  such  grant  have  been 
compelled  to  rely  for  the  perpetuity  of  the  grant,  either 
8) 


Opinions  of  Chief  Justice  Ryan. 

upon  the  pledged  faith  of  the  sovereign  power  making  the 
grant,  or  upon  constitutional  compacts  inhibiting  the  power 
of  revocation.  The  doctrine  that  a  chaTter  of  incorpora- 
tion, conferring  certain  franchises  upon  a  company  or  in- 
dividual, was  in  the  nature  of  a  grant,  and  hence  protected 
from  encroachment  or  attack  by  the  federal  constitution, 
was  established  after  elaborate  argument  and  on  full  con- 
sideration by  the  supreme  court  of  the  United  States,  in 
the  Dartmouth  College  case.  This  doctrine  has,  since  that 
decision,  been  acquiesced  in  by  nearly  if  not  quite  all  the 
state  courts  of  the  union.  It  is  competent,  nevertheless,  for 
each  state,  by  constitutional  regulation  or  specific  legisla- 
tive enactment,  to  reserve  the  power  to  modify  or  repeal 
all  such  acts  of  incorporation.  When  the  power  of  modi- 
fication or  repeal  is  reserved,  either  in  the  one  mode  or  the 
other,  it  is  obvious  that  the  grantees  must  rely,  for  the  per- 
petuity and  integrity  of  the  franchises  granted  to  them, 
solely  on  the  faith  of  the  sovereign  grantor.  Hence,  since 
the  decision  of  the  Dartmouth  College  case,  some  of  the 
states,  and  our  own  among  the  number,  have,  by  constitu- 
tional provision,  reserved  to  their  legislature  the  right  of 
modification  or  repeal  of  all  special  acts  of  incorporation ; 
and  all  such  corporations  now  rest  upon  the  faith  of  the 
state,  taking  care  to  deserve  its  favor  by  observing  strictly 
the  limits  of  their  powers,  and  accomplishing  by  all  legiti- 
mate means  the  objects  of  their  incorporation." 

In  1863,  in  Kenosha  K.  &  R  I.  K.  K.  Co.  v.  Marsh, 
supra,  Mr.  Justice  Paine  said:  "The  occasion  of  reserv- 
ing such  a  power  in  the  constitution  or  in  the  charters  them- 
selves, is  well  understood.  It  grew  out  of  the  decisions 
of  the  supreme  court  of  the  United  States,  that  charters 
were  contracts  within  the  meaning  of  the  constitutional  pro- 
vision that  the  states  should  pass  no  law  impairing  the 


339  Attorney  General  v.  Railroad  Cos. 

obligation  of  contracts.  This  was  supposed  to  deprive  the 
states  of  that  power  of  control  over  corporations  which  was 
deemed  essential  to  the  safety  and  protection  of  the  public. 
Hence  the  practice,  which  has  extensively  prevailed  since 
those  decisions,  of  reserving  the  power  of  amending  or  re- 
pealing charters.  It  was  solely  to  avoid  the  effect  of  the 
decision  that  the  charter  itself  was  a  contract  between  the 
state  and  the  corporation,  so  as  to  enable  the  state  to  impose 
such  salutary  restraint  upon  those  bodies  as  experience 
might  prove  necessary.  Undoubtedly  the  legislature  might 
under  this  power,  impose  new  duties  and  new  restraints 
upon  corporations  in  the  prosecution  of  the  enterprises  al- 
ready undertaken.  And  provisions  of  this  nature  would 
be  binding,  whether  assented  to  or  not," 

In  1870,  in  Whiting  v.  Sheboygan  &  F.  du  L.  R  E.  Co., 
supra,  Chief  Justice  Dixon  enters  into  an  able  and  elabor- 
ate consideration  of  the  subject,  from  which  we  quote: 
"And  here  it  occurs  to  us  to  observe  that,  under  the  princi- 
ples announced  in  the  Dartmouth  College  case  and  in  the 
numerous  cases  which  have  followed  it  in  the  same  court, 
and  by  the  authority  of  which  the  courts  of  all  states  are 
bound,  this  power  of  the  state  to  regulate  and  control  the 
franchise  and  fix  the  amount  of  the  tolls  has  been  fre- 
quently wholly  lost.  Be  this  matter  as  it  may  in  other 
states,  the  question  can  never  arise  in  this  state.  Our  peo- 
ple, by  a  most  wise  and  beneficient  provision  in  their  con 
stitution  have  perpetually  reserved  the  power  to  the  legis- 
lature to  alter  or  repeal  all  charters  or  acts  of  incorporation 
at  any  time  after  their  passage.  As  yet,  we  believe,  the 
power  has  never  been  exercised  with  respect  to  any  railroad 
company  organized  in  this  state,  and  possibly  it  may  never 
be.  It  is  valuable,  however,  as  a  check  upon  the  rapacity 
which  these  corporations  sometimes  exhibit,  and  the  time 


Opinions  of  Chief  Justice  Ryan.  340 

may  come  when  the  legislature  will  be  imperiously  required 
to  exert  it;  but  when  it  does,  if  ever,  it  will  not  be  to  de- 
prive the  corporation  or  its  stockholders  of  their  legiti- 
mate rights,  but  to  correct  abuses  and  save  the  rights  of  the 
people.  The  legislature  will  not  reduce  the  tolls  or  rates 
to  an  unreasonably  low  figure,  or  so  as  to  disappoint  the 
just  expectations  of  the  owners  of  stock." 

In  1874,  this  sounds  like  prophecy. 

And  at  the  last  term,  in  the  case  of  West  Wis.  R.  R.  Co. 
v.  Trempealeau,  supra,  Mr.  Justice  Cole  said :  "The  valid- 
ity of  these  acts  repealing  the  exemption  is  mainly  rested 
upon  the  power  reserved  to  the  legislature  by  sec.  1.  art. 
XI  of  the  constitution,  which  in  terms  declares  that  all 
general  laws  or  special  acts  under  which  corporations  with- 
out banking  powers  are  created,  may  be  altered  or  repealed 
by  the  legislature  at  any  time  after  their  passage.  If 
proper  force  and  effect  are  given  to  this  constitutional  pro- 
vision, it  would  seem  to  afford  ample  authority  for  the  en- 
actment of  the  repealing  statutes  above  cited,  as  it  reserves 
the  right  to  the  legislature  to  amend  and  revoke  all  corpor- 
ate franchises  and  privileges  which  it  might  grant.  In  this 
case  the  legislature  first  relinquished  the  right  of  taxation, 
so  far  as  the  lands  in  controversy  are  concerned,  and  then 
subsequently  resumed  it.  But  this,  the  learned  counsel  for 
the  company  contend,  it  was  not  competent  for  the  legis- 
lature to  do,  because  it  impaired  the  obligation  of  a  contract 
which  the  state  had  made.  The  doctrine  that  a  state  may 
grant  or  bargain  away  beyond  recall,  the  right  of  taxation, 
a  high  political  and  sovereign  power,  essential  to  the  very 
existence  of  the  state,  and  without  which  no  governmental 
functions  can  be  exercised  or  carried  on,  has  always  seemed 
to  me  to  rest  upon  very  unsatisfactory  grounds,  and  I  am 
unable  to  assent  to  its  general  correctness.  If  the  legisla- 


341  Attorney  General  v.  Railroad  Cos. 

ture  of  a  state  may  relinquish  for  a  specific  period  the 
right  to  tax  the  property  of  persons  or  corporations  within 
its  jurisdiction,  it  may  do  so  permanently;  and  it  may, 
upon  the  same  ground,  relinquish  its  police  power,  the 
right  of  eminent  domain,  and  other  sovereign  powers,  until 
nothing  of  the  state  government  remains  but  a  name.  I 
should  greatly  regret  the  general  recognition  of  such  a  doc- 
trine, or  even  acquiescence  in  it  without  protest,  as  sound 
constitutional  law.  And  therefore  I  feel  constrained  to 
withhold  my  assent  to  it  at  this  time.  I  do  not  propose  to 
enter  upon  any  discussion  of  the  question,  however,  as  it  is 
not  necessarily  the  ground  upon  which  our  decision  in  this 
case  is  founded.  I  concede  that  the  Supreme  Court  of  the 
United  States  say  that  the  question  whether  the  legislature 
has  the  power  to  grant  away  the  right  of  taxation  is  one  not 
open  to  discussion  in  that  court,  because  this  power  has 
been  affirmed  by  repeated  adjudications  made  in  that  court, 
and  the  doctrine  of  the  Dartmouth  College  case  has  been 
applied  in  all  its  extent  and  rigor  to  such  a  legislative 
grant.  *  *  *  The  object  and  historical  origin  of  the 
provision  in  the  constitution  of  this  state  are  matters  known 
to  all  professional  men.  They  were,  through  this  para- 
mount authority,  to  retain  and  secure  to  the  state  full 
power  and  control  over  corporate  franchises,  rights  and 
privileges  which  it  might  grant, — a  power  and  control 
which  the  state  was  in  a  measure  deprived  of  by  the  federal 
constitution,  as  that  instrument  had  been  interpreted  in 
the  celebrated  Dartmouth  College  case.  With  the  grant  of 
exemption  from  taxation  was  annexed  the  reservation  that 
such  grant  might  be  altered  or  revoked  by  the  legislature 
at  any  time  after  its  passage.  It  was  a  qualification  of  the 
grant,  and  the  subsequent  exercise  of  the  reserved  power 
cannot  be  regarded  as  an  act  impairing  the  obligation  of 


Opinions  of  Chief  Justice  Ryan. 

contracts."  And  the  court  sustained  the  exercise  of  the  re- 
served right. 

This  has  been  the  unanimous  opinion  and  decision  of  the 
court,  always,  in  all  cases  before  it  And,  by  force  of  the 
constitutional  power  reserved  and  of  the  uniform  construc- 
tion and  application  of  it,  the  rule  in  the  Dartmouth  Col- 
lege case,  as  applied  to  corporations,  never  had  place  in 
this  state,  never  was  the  law  here.  The  state  emancipated 
itself  from  the  thraldom  of  that  decision,  in  the  act  of  be- 
coming a  state;  and  corporations  since  created  here  have 
never  been  above  the  law  of  the  land. 

Subject  to  this  reserved  right,  and  under  the  rule  in  the 
Dartmouth  College  case,  charters  of  private  corporations 
are  contracts,  but  contracts  which  the  state  may  alter  or 
determine  at  pleasure.  Contracts  of  that  character  are  not 
unknown  in  ordinary  private  dealings ;  and  such  we  hold 
to  be  the  sound  and  safe  rule  of  public  policy.  It  is  so 
in  England.  It  is  so  under  the  federal  government  itself. 
The  material  property  and  rights  of  corporations  should  be 
inviolate,  as  they  are  here ;  but  it  comports  with  the  dignity 
and  safety  of  the  state  that  the  franchises  of  corporations 
should  be  subject  to  the  power  which  grants  them,  that  cor- 
porations should  exist  as  the  subordinates  of  the  state, 
which  is  their  creator,  durante  bene  placito. 

This  is  a  question  of  state  law,  not  of  federal  law.  We 
give  full  scope  to  the  federal  constitution  as  interpreted  by 
the  federal  courts,  but  we  stand  clearly  outside  of  both. 
This  question  could  be  brought  within  the  Dartmouth  Col- 
lege rule,  not  by  interpretation  of  the  federal  constitution, 
but  by  interpretation  of  the  state  constitution  only.  That 
is  our  function.  We  accept  the  construction  of  the  federal 
constitution  as  the  federal  courts  give  it.  But  we  give 


343  Attorney  General  v.  Railroad  Cos. 

construction  to  our  own  constitution  for  ourselves.  And 
there  we  might  well  rest. 

But  the  exercise  of  this  reserved  power  has  been  sanc- 
tioned by  the  federal  and  other  state  courts. 

The  general  banking  law  of  New  York,  of  1838,  pro- 
vided that  stockhoders  of  banks  under  it  should  not  be  per- 
sonally liable  for  the  debts  of  their  banks,  unless  they 
should  expressly  so  declare  by  their  articles  of  association ; 
but  the  law  reserved  power  to  the  legislature  to  alter  or 
repeal  it  at  any  time,  the  very  words  of  our  constitution. 
Under  this  law,  a  bank  was  organized  in  1844,  and  the 
stockholders  declared,  by  their  articles  of  association,  that 
they  should  not  be  liable  for  the  debts  of  the  bank.  After- 
wards the  constitution  of  the  state,  of  1846,  declared  the 
stockholders  liable,  and  the  legislature  of  1849  passed  an 
act  to  enforce  that  liability.  The  courts  of  New  York  held 
the  stockholders  liable;  and  the  supreme  court  of  the 
United  States  affirmed  the  judgment,  holding  that  the  con- 
stitutional provision  and  act  of  1849  impaired  the  obliga- 
tion of  no  contract,  either  in  the  general  banking  law  or  in 
the  articles  of  association,  because  the  reserved  power  sub- 
jected the  contract  and  the  stockholders  to  the  change  made 
in  their  liability.  Sherman  v.  Smith,  1  Black,  587.  See 
also  21  ]ST.  Y.  infra. 

In  the  Pennsylvania  College  Cases,  13  Wallace,  190, 
the  opinion  of  the  court  states  that:  "Cases  often  arise, 
where  the  legislature,  in  granting  an  act  of  incorporation 
for  a  private  purpose,  either  make  the  duration  of  the  char- 
ters conditional,  or  reserve  to  the  state  the  power  to  alter, 
modify  or  repeal  the  same  at  pleasure.  Where  such  a  pro- 
vision is  incorporated  in  the  charter,  it  is  clear  that  it  quali- 
fies the  grant,  and  that  the  subsequent  exercise  of  that  re- 


Opinions  of  Chief  Justice  Ryan.  344 

served  power  cannot  be  regarded  as  an  act  within  the  pro- 
hibition of  the  constitution.  Such  a  power,  also,  that  is, 
the  power  to  alter,  modify  or  repeal  an  act  of  incorporation, 
is  frequently  reserved  to  the  state  by  a  general  law  appli- 
cable to  acts  of  incorporation  or  to  certain  classes  of  the 
same,  as  the  case  may  be,  in  which  case  it  is  equally  clear 
that  the  power  may  be  exercised  whenever  it  appears  that 
the  act  of  incorporation  is  one  which  falls  within  the  reser- 
vation, and  the  charter  was  granted  subsequent  to  the  pas- 
sage of  the  general  law,  even  though  the  charter  contains 
no  such  condition  nor  any  allusion  to  such  a  reservation. 
Reservations  in  such  a  charter,  it  is  admitted,  may  be 
made ;  and  it  also  conceded  that  when  they  exist,  the  exer- 
cise of  the  power  reserved,  by  a  subsequent  legislature,  does 
not  impair  the  obligation  of  the  contract  created  by  the  or- 
iginal act." 

The  same  point  is  ruled  in  many  cases,  amongst  others, 
in  Miller  v.  State,  15  Wallace,  478 ;  Tomlinson  v.  Jessup, 
15  id.,  454;  Holyoke  Co.  v.  Lyman,  15  id.,  500;  McLaren 
v.  Pennington,  1  Paige,  102 ;  Re  Oliver  Lee's  Bank,  21  N. 
Y.  9;  Perrin  v.  Oliver,  1  Minn.  202 ;  Mayo'r,  etc.  v.  Nor- 
wich &  W.  R.  R.  Co.  109  Mass.  103 ;  Parker  v.  Metropol- 
itan R.  R.  Co.,  id.,  506;  Stevens  v.  Smith,  29  Vermont, 
160. 

In  Olcott  v.  Supervisors,  16  Wallace,  678,  a  case  from 
this  state,  turning  on  the  relations  of  a  railroad  company 
and  the  state,  the  court  takes  occasion  to  say  of  the  re- 
served power  in  our  constitution :  "That  the  legislature  may 
alter  or  repeal  the  charter  granted  to  the  Sheboygan  &  Fond 
du  Lac  Railroad  Company,  is  certain.  This  is  a  power 
reserved  by  the  constitution.  The  railroad  can,  therefore, 
be  controlled  and  regulated  by  the  state.  Its  use  can  be 


345  Attorney  General  v.  Railroad  Cos. 

defined ;  its  tolls  and  rates  for  transportation  may  be  lim- 
ited." 

It  was  argued  for  the  defendants  that  the  power  is  a 
limited  one.  It  is  so  said  in  Miller  v.  State,  and  Holyoke 
v .  Lyman,  supra,  and  in  some  Massachusetts  cases,  that 
it  must  be  reasonably  exercised.  But  the  remarks  in  the 
former  cases  seem  to  relate  to  the  property,  rather  than  to 
the  franchise,  and  are  vague.  And  it  seems  to  us  that  the 
legislature  is  the  sole  judge  of  the  reasonable  nature  of  the 
alteration,  as  it  is  the  sole  judge  of  the  reasonable  nature 
of  the  original  charter.  And  so  that  court  itself  says  in 
effect  in  Mayor  v.  Norwich  &  W.  R.  R.  Co.,  supra.  But 
these  dicta  are  too  vague  and  general  for  either  guidance  or 
authority. 

The  reserved  power  in  our  constitution  is  a  positive  pro- 
vision entering  into  all  charters  under  it,  and  must  be  con- 
strued as  it  is  written.  We  cannot  construe  away  its  mean- 
ing, or  hold  it  to  mean  something  else,  which  we  or  others 
might  consider  wiser  or  better.  We  are  bound,  in  our  con- 
struction of  it,  by  the  very  words  used.  We  refer  to  a 
large  number  of  cases  on  this  point  of  construction,  col- 
lated by  Dixon,  C.  J.,  in  26  Wis.  451.  The  power  is 
limited  by  its  own  words  only.  Any  limitation  of  it  must 
come  from  those  words.  And  we  must  be  guided  in  our 
construction  of  the  words  used,  if  the  words  will  admit  of 
it,  by  the  purpose  of  the  provision,  to  do  away  in  this  state 
with  the  rule  in  the  Dartmouth  College  case  so  far  as  it 
relates  to  charters  of  private  corporations.  The  power  to 
repeal  can  bear  but  one  construction ;  for,  in  this  use,  the 
word  has  but  one  meaning.  The  power  to  alter  depends  on 
the  meaning  of  the  word,  alter.  To  alter  is  to  make  differ- 
ent, without  destroying  intentity  (Crabb)  ;  to  vary  without 


Opinions  of  Chief  Justice  Ryan.  346 

entire  change  (Webster  and  Imp.  Diet).  A  corporate 
charter  of  one  kind  cannot  be  altered  to  a  charter  of  an  en- 
tirely different  kind.  But  a  corporate  charter  may  be 
altered  so  as  to  make  it  different  in  detail,  so  long  as  the 
general  identity  of  the  corporation  remains;  so  that  it  is 
varied,  without  entire  change.  This  is  the  obvious  mean- 
ing to  lawyer  or  layman.  Arguments  db  inconvenienti 
cannot  weigh  against  the  manifest  meaning  of  the  word 
used;  they  may  go  to  impeach  the  wisdom  of  the  power, 
but  not  to  impair  its  import. 

We  think  that  Mr.  Justice  Paine  recognized  the  true 
limit,  depending  on  the  word  used,  in  Kenosha  R.  R.  Co. 
v.  Marsh,  supra:  "I  suppose  it  would  hardly  be  claimed 
that  the  state,  even  where  this  power  of  amendment  is  re- 
served, could,  by  amending  the  charter  of  a  railroad  com- 
pany so  as  to  provide  for  a  new  and  entirely  different 
road,  impose  any  obligation  on  the  corporation  to  build  it." 
That  is  a  particular  application  of  the  rule,  not  to  alter  so 
as  entirely  to  change. 

But  it  is  unnecessary  to  pursue  this  topic  further,  as 
there  can  be  no  doubt  that  here  is  as  unquestionable  an  ex- 
ercise of  the  power  to  alter  as  can  well  be.  The  charters 
of  the  defendants  gave  them  an  unlimited  right  of  toll. 
The  alteration  limits  the  right.  This  is  a  strict  alteration, 
or  there  is  no  such  thing  as  alteration.  This  is  just  what 
Strong,  J.,  says,  in  Olcott  v.  Supervisors,  supra,  and 
Dixon,  C.  J.,  says,  in  Whiting  v.  S.  &  F.  R.  R.  Co.,  supra, 
the  legislature  can  do  under  the  power  to  alter. 

We  shall  not  discuss  the  question  whether  the  defendants 
have  a  right  to  take  toll,  as  intimated  by  Mr.  Justice 
Strong  in  the  State  Freight  Tax  Case,  15  Wallace,  232, 
without  any  franchise  to  take  it,  as  an  attribute  of  owner- 
ship. They  certainly  could  not  have  a  right  to  exact 


347  Attorney  General  v.  Railroad  Cos. 

what  they  might  please.  But  the  question  is  not  here,  be- 
cause these  corporations  accepted  a  franchise  to  take  toll, 
and  must  be  held  to  take  it  under  the  franchise. 

And  we  need  hardly  notice  the  point  made,  that  the 
franchise  to  take  toll  without  limitation,  once  granted,  in- 
heres in  the  railroad  as  property,  beyond  the  reach  of  the 
reserved  power  to  alter.  Logically  considered,  this  is  only 
a  denial  in  another  form  of  the  reserved  power  to  alter. 
If  the  franchise  inhere  in  the  property  by  the  use  of  it, 
and  be  revocable,  then  it  would  be  severed  from  the  prop- 
erty by  repeal,  and,  upon  alteration,  would  inhere  only 
as  altered.  A  building  is  real  estate,  by  being  attached  to 
the  soil ;  but  if  it  be  taken  down,  the  brick  and  wood  do  not 
still  inhere  in  the  land.  The  reserved  power  would  be  nu- . 
gatory,  if  the  mere  use  of  the  franchise  could  operate  to 
put  it  beyond  alteration  or  repeal.  The  position  is  mere 
petitio  principii. 

Of  the  same  type  is  the  argument  that  ch.  273  violates 
the  contracts  of  these  defendants  with  their  creditor.  This 
position  appears  to  us  to  rest  in  the  absurdity  that  the  mort- 
gagor can  vest  in  his  mortgagee  a  greater  estate  than  he  had 
himself.  Perhaps  the  statute  may  lessen  the  means  of  pay- 
ment of  the  defendants.  So  would  a  fine  for  homicide, 
under  the  police  power  of  the  state.  But  to  lessen  the 
means  of  payment  of  a  contract,  is  not  to  impair  the  obliga- 
tion of  the  contract.  These  defendants  took  their  fran- 
chises, and  their  creditors  invested  their  money,  subject 
to  the  reserved  power,  and  suffer  no  legal  wrong  when  that 
is  exercised. 

It  was  said  that  ch.  273  violates  the  rights  of  property 
of  these  defendants.  We  cannot  perceive  that  it  does. 
Whether  it  will  lessen  the  income  of  their  property,  we 
cannot  foresee.  We  only  know  that  it  does  lessen  their 


Opinions  of  Chief  Justice  Ryan.  348 

rates  of  toll.  But  it  does  not  wrongfully  touch  their  prop- 
erty. As  far  as  the  franchise  is  to  be  considered  property, 
it  was  subject  to  this  very  limitation;  and  the  limitation 
is  the  exercise  of  a  right  over  it,  which  does  not  violate  it. 
The  right  of  limitation  entered  into  the  property  and  qual- 
ified it.  And  the  act  does  not  at  all  meddle  with  the  ma- 
terial property,  distinct  from  the  franchise.  It  acts  only  on 
the  franchise,  not  at  all  upon  the  material  property.  And 
it  is  sufficient  to  say  that  they  acquired  the  material  prop- 
erty, as  distinct  from  the  franchise,  subject  to  the  altera- 
tion of  the  franchise  under  the  reserved  power.  That  was 
a  condition  under  which  they  chose  to  hold  their  property ; 
and  they  have  no  right  to  complain  when  the  condition  is 
enforced.  Their  rights  in  their  material  property  are  in- 
violate, and  shall  never  be  violated  with  the  sanction  of 
this  court.  But  they  are  no  more  violated  by  this  act  and 
its  enforcement,  than  by  foreclosure  of  a  mortgage  or  eject- 
ment by  paramount  title.  It  is  a  right  over  property  which 
is  enforced,  not  a  wrong  to  right  in  property. 

We  listened  to  a  good  deal  of  denunciation  of  chapter 
273  which  we  think  was  misapplied.  We  do  not  mean  to 
say  that  the  act  is  not  open  to  criticism.  We  only  say  that 
such  criticism  is  unfounded.  It  was  said  that  its  provis- 
ions, which  have  been  noticed,  were  not  within  the  scope  of 
the  legislative  function;  as  if  every  compilation  of  stat- 
utes, everywhere,  in  all  time,  did  not  contain  provisions 
limiting  and  regulating  tolls;  as  if  the  very  franchise  al- 
tered were  not  a  rebuke  to  such  clamor.  It  was  repeated, 
with  a  singular  confusion  of  ideas  and  a  singular  per- 
version of  terms,  that  the  provisions  of  the  chapter  amount 
to  an  act  of  confiscation;  a  well  defined  term  in  the  law, 
signifying  the  appropriation,  by  the  state,  to  itself,  for  its 
own  use,  as  upon  forfeiture,  of  the  whole  thing  confiscated. 


349  Attorney  General  v.  Railroad  Cos. 

It  was  denounced  as  an  act  of  communism.  We  thank  God 
that  communism  is  a  foreign  abomination,  without  recogni- 
tion or  sympathy  here.  The  people  of  Wisconsin  are  too 
intelligent,  too  staid,  too  just,  too  busy,  too  prosperous,  for 
any  such  horror  of  doctrine ;  for  any  leaning  towards  con- 
fiscation or  communism.  And  these  wild  terms  are  as  ap- 
plicable to  a  statute  limiting  the  rates  of  toll  on  railroads, 
as  the  term  murder  is  to  the  surgeon's  wholesome  use  of  the 
knife,  to  save  life,  not  to  take  it.  Such  objections  do  not 
rise  to  the  dignity  of  argument.  They  belong  to  that  order 
of  grumbling  against  legal  duty  and  legal  liability,  which 
would  rail  the  seal  from  off  the  bond.  They  were  not 
worthy  of  the  able  and  learned  counsel  who  repeated  them, 
and  are  hardly  worthy  even  of  this  notice  in  a  judicial 
opinion. 

We  have,  according  to  our  duty,  dealt  with  the  questions 
we  have  considered  as  questions  of  law.  We  cannot  judge 
of  the  policy  or  of  the  fairness  of  the  act.  That  is  for  the 
legislature.  We  can  only  say  that  it  is  the  law.  We  can- 
not judge  of  the  propriety  of  these  informations.  That  is 
for  the  law  officers  of  the  state.  We  are  only  to  determine 
what  the  law  is,  and  to  administer  it  as  we  find  it,  in  causes 
over  which  we  have  no  other  control.  And  we  can  join  in 
no  outcry  against  the  law,  which  it  is  our  duty  to  admin- 
ister. Neither  can  we  countenance  any  outcry  against  the 
railroads.  We  cannot  consider  any  popular  excitement 
against  them  warranted  or  useful.  The  railroads  have 
their  rights,  and  so  have  the  people.  Whatever  usurpa- 
tion or  abuses,  if  any,  the  railroad  companies  may  be  guilty 
of,  can  find  a  remedy  in  calm,  just,  appropriate  legislation. 
And  this  court  will  firmly  and  impartially  protect  all  the 
rights  of  the  railroads  and  of  the  people,  in  all  litigation 
which  may  come  here.  But  we  can  take  no  part  in  popular 


Opinions  of  Chief  Justice  Ryan.  350 

outcry  against  these  companies,  or  countenance  any  preju- 
dice against  them.  We  endorse  here  the  full  meaning  of 
•what  Mr.  Justice  Paine  so  eloquently  said  in  Whiting  v. 
Sheboygan  R.  R.  Co.,  supra:  "Railways  are  the  great  pub- 
lic highways  of  the  world,  along  which  its  gigantic  currents 
of  trade  and  travel  pour — highways  compared  with  which 
the  most  magnificent  highways  of  antiquity  dwindle  into 
insignificance.  They  are  the  most  marvelous  invention  of 
modern  times.  They  have  done  more  to  develop  the  wealth 
and  resources,  to  stimulate  the  industry,  reward  the  labor, 
and  promote  the  general  comfort  and  prosperity  of  the 
country,  than  any  other,  and  perhaps  all  other,  mere  phys- 
ical causes  combined.  There  is  probably  not  a  man,  woman 
or  child,  whose  interest  and  comfort  have  not  been  in  some 
degree  subserved  by  them." 

And  we  endorse  and  repeat  what  Chief  Justice  Dixon 
well  said  in  the  same  case:  "The  power  of  the  legislature 
to  regulate  the  tolls  and  charges  of  such  companies  is  in 
itself  a  limited  one,  if  not  in  a  constitutional  sense,  cer- 
tainly in  the  sense  of  morality  and  justice.  If  there  be  not 
an  express,  there  is  certainly  an  implied,  obligation  and 
promise,  on  the  part  of  the  state,  never  to  reduce  the  tolls 
and  charges  below  a  standard  which  will  be  reasonable,  or 
which  will  afford  a  fair  and  adequate  remuneration  and 
return  upon  the  amount  of  capital  actually  invested.  This 
obligation  and  promise,  which  spring  from  the  act  of  in- 
corporation and  invitation  by  the  state  to  persons  to  invest 
their  money  in  the  stock,  it  is  presumed  that  no  legislative 
body  would  disregard,  except  where  the  company,  by  gross 
and  wanton  abuse  of  its  privileges,  had  forfeited  its  rights ; 
and  then,  instead  of  legislative  action,  it  is  also  presumed 
that  the  regular  course  of  judicial  proceedings  would  be 
preferred.  The  true  intent  and  object  of  the  power  is,  that 


351  Attorney  General  v.  Railroad  Cos. 

the  legislature  shall  be  able  to  protect  the  rights  and  in- 
terests of  the  people,  but  not  that  it  should  arbitrarily  im- 
pair the  rights  and  franchises  of  the  company,  or  destroy 
the  property  of  its  stockholders.  The  good  faith  of  the 
state  is  pledged  against  this,  and  it  is  not  within  the  range 
of  presumption  that  it  will  ever  be  done.  The  individuals 
owning  the  property,  and  whom  the  corporation  represents, 
purchase  it  under  this  pledge  and  inducement  held  out  by 
the  state.  To  them  it  is  a  matter  of  mere  private  business, 
engaged  in  under  the  sanction  and  encouragement  of  the 
state,  and  for  their  individual  gain  and  emolument;  and 
the  legislature  will  no  more  unnecessarily  interfere  with  it, 
or  with  the  business  of  the  corporations  when  it  is  legiti- 
mately and  properly  conducted,  than  it  will  with  any  other 
private  business." 

And,  fully  sustaining  the  reserved  power  and  this  exer- 
cise of  it,  as  matter  of  law,  we  add  to  what  the  judges  of 
this  court  have  said,  what  Chancellor  Kent  says,  that  it 
should  be  matter  for  serious  consideration  how  far  the  ex- 
ercise of  the  reserved  power  is  consistent  with  justice  and 
policy,  and  that  it  ought  to  be  under  the  guidance  of  ex-' 
treme  moderation  and  discretion.  2  Kent's  Com.  306. 

It  is  deeply  to  be  regretted  that  there  is  just  now  more 
or  less  excitement  against  railroad  corporations,  although 
we  believe  that  its  extent  is  greatly  exaggerated.  But  it 
seems  to  us  quite  safe  to  say  that,  though  this  feeling  may 
be  unwise,  it  is  not  vindictive ;  but  is  rather  of  the  nature 
of  parental  anger  against  those  spoiled  children  of  legisla- 
tion, as  our  statute  books  abundantly  show  them  to  be,  who, 
after  some  quarter  of  a  century  of  legislative  favors  lav- 
ishly showered  upon  them,  unwisely  mutiny  against  the 
first  serious  legislative  restraint  they  have  met.  If  it  be 
true  that  the  people  are  too  angry,  it  is  very  sure  that  the 


Opinions  of  Chief  Justice  Ryan.  352 

companies  have  been  too  defiant.    But,  be  all  this  as  it  may, 
there  is  some  excitement  against  them.     We  entertain  no 
doubt,  however,  that  through  it  all,  the  sound  and  just 
views  just  quoted  from  their  chosen  and  trusted  judges, 
Dixon  and  Paine,  are  the  views  of  the  people  of  this  state 
to-day;  that  they  always  have  been;  and  that  these  corpo- 
rations and  all  interested  in  them  may  safely  rely  on  the 
sense  of  justice  of  the  people  and  the  legislature.     The 
judgment  of  both  may  err.    It  is  said  that  it  has  erred  in 
the  details  of  this  chapter  273.     Of  that  we  are  not  the 
judges;  but  we  believe  that  it  is  yet  to  be  verified  by  ex- 
periment.    It  may  well  be  that  the  high  rates  charged  by 
the  railroads  have  lessened  their  own  receipts,  by  crippling 
the  public  interests.     The  affidavits  of  experts  have  been 
read  to  the  contrary;  but  they  are  only  opinions,  founded 
indeed  on  past  statistics.     Such  opinions,  founded  on  such 
statistics,  would  have  defeated  cheap  postage,  and  are  help- 
ing to-day  to  defeat  a  moderate  tariff.     Experience  often 
contradicts  such  theories.     The  interest  of  the  public,  in 
this  regard,  seems  to  be  identical  with  the  interest  of  the 
railroads.    We  think  that  there  must  be  a  point  where  the 
public  interest  in  railroads  and  the  private  interest  of  the 
corporators  meet;  where  the  service  of  the  public  at  the 
lowest  practicable  rate  will  produce  the  largest  legitimate 
income  to  the  railroads.     It  seems  to  us  an  utter  delusion 
that  the  highest  tolls  will  produce  the  largest  income.    The 
companies  have  hitherto  absolutely  controlled  their  own 
rates.     The  legislature  now  limits  them.     The  companies 
say  that  the  limit  is  too  low.    But  there  is  no  occasion  for 
heat  or  passion  on  either  side.     The  people  and  the  legis- 
lature understand  well  the  necessity  of  the  railroads  to  the 
slate,  and  the  necessity  of  dealing  fairly  and  justly,  and 
even  liberally,  with  the  companies.     Time  and  prudence 


353  Attorney  General  v.  Railroad  Cos. 

and  wise  counsels  will  set  all  this  right.  This  very  con- 
troversy may  well  bring  about  a  better  and  more  perma- 
nent understanding  and  relation  between  the  state  and  its 
corporations.  We  say  so  much  in  deference  to  an  earnest 
appeal  from  the  bar  to  counsel  moderation.  But,  in  the 
meantime,  we  cannot  legislate  for  either  party.  We  can 
only  say  what  the  law  is,  and  administer  it  as  we  find  it. 

An  objection  was  taken  to  chapter  273,  that  it  is  not 
uniform  throughout  the  state,  as  required  of  general  laws 
under  the  constitutional  amendment  of  1871.  As  we  think 
that  we  have  already  sufficiently  indicated,  we  sustain  and 
apply  this  act  as  an  alteration  of  the  special  charters  of 
these  defendants,  and  not  as  an  amendment  of  the  general 
railroad  act  of  1872.  It  was  said,  on  the  argument,  that 
one  of  the  roads  of  the  Chicago  &  Northwestern  Company 
was  organized  under  the  general  act.  But  that  is  not 
pleaded,  and  does  not  appear  in  any  of  the  papers  in  the 
case;  and  of  course  we  cannot  act  upon  a  mere  verbal  sug- 
gestion of  the  kind.  So  the  question  whether  chapter  273 
can  be  held  a  valid  alteration  of  the  general  railroad  act 
of  1872,  is  not  before  us,  and  is  not  passed  upon. 

Neither  do  we  express  any  opinion  on  the  validity  of 
any  provision  of  chapter  273  not  expressly  involved  in  the 
decision  of  these  motions.  And,  in  that  connection,  it  is 
proper  to  say  that  the  injunctions  prayed  for  exclude  all 
question  here  on  what  is  called  inter-state  commerce. 

We  only  hold  the  provisions  of  chapter  273  of  1874, 
regulating  their  tolls,  to  be  valid  amendments  of  the  special 
charters  of  these  defendants,  obtained  from  the  state  under 
the  constitution  as  it  stood  before  the  amendment  of  1871. 

VI.  Supposing  chapter  273  to  be,  on  the  part  of  the 
state,  a  valid  amendment  of  the  charters  of  the  defend- 
ants, it  was  objected  that  it  could  not  be  a  valid  amend- 
23 


Opinions  of  Chief  Justice  Ryan,  354 

merit  quoad  the  defendants,  without  acceptance  of  it  on 
their  part ;  and  until  such  acceptance,  not  obligatory  upon 
them.  And  this  proposition  is  sanctioned  by  Yeaton  v. 
Bank,  21  Grattan,  593,  and  other  cases  cited. 

It  was  said  in  Kenosha  E.  E.  Co.  v.  Marsh,  supra,  and 
we  think  said — certainly  implied — in  other  cases  in  this 
court,  that  valid  alterations  of  a  charter,  under  the  re- 
served power,  would  bind  the  corporation,  whether  assented 
to  or  not.  The  same  thing  has  been  said  by  other  courts, 
is  implied  in  a  great  many  cases,  and  is  expressly  decided 
by  the  supreme  court  of  Massachusetts  in  Mayor  v.  Nor- 
wich &  W.  E.  E.  Co.,  supra.  And  we  think  that  the  better 
opinion. 

But  it  appears  to  us  to  be  here  a  distinction  without  a 
difference.  For  it  is  very  evident,  as  it  is  said  in  Yeaton 
v.  Bank,  that  if  the  corporation  do  not  accept  the  amend- 
ment, it  must  abandon  its  charter.  The  court  says :  "One 
consequence  undoubtedly  is,  that  the  corporation  cannot 
conduct  its  operations  in  defiance  of  the  power  that  created 
it.;  and  if  it  does  not  accept  the  modification  or  amendment 
proposed,  must  discontinue  its  operations  .as  a  corporate 
body." 

If  the  amendment  be  obligatory,  the  corporation  may 
suspend;  if  it  be  not  obligatory,  the  corporation  must  ac- 
cept, or  suspend ;  we  fail  to  see  the  practical  difference  in 
such  a  case  as  this.  Whether  or  not  the  defendants  had  an 
election  to  accept  or  reject,  and  whether  or  not  they  ac- 
cepted the  amendment,  they  had  no  right  to  go  on  in  dis- 
regard of  the  amendment.  And  we  think  that  their  proceed- 
ing under  their  charters,  after  the  passage  of  the  altera- 
tion, raises  a  presumption  that,  if  they  had  a  right  of  elec- 
tion, they  exercised  it  by  accepting  the  alteration.  Other- 
wise, it  was  their  duty  to  suspend  their  operations.  In  any 


355  Attorney  General  v.  Railroad  Cos. 

case,  the  question  cannot  weigh  in  the  consideration  of  our 
duty  to  enjoin  their  actual  disobedience  of  the  law. 

VII.  The  defendant  The  Chicago.,  Milwaukee  &  St.  Paul 
Company  pleads  the  charter  of  the  territorial  legislature 
of  February  11,  1847,  incorporating  the  Milwaukee  & 
Waukesha  Railroad  Company,  and  the  organization  of  the 
corporation  thereunder;  the  act  of  the  territorial  legisla- 
ture of  March  11,  1848,  extending  the  road  from  "Wau- 
kesha to  Prairie  du  Chien,  and  the  construction  of  the  road 
from  Milwaukee  to  Prairie  du  Chien  in  the  years  1850- 
1856;  the  act  of  the  state  legislature  of  February  1,  1850, 
giving  the  corporation  the  new  name  of  the  Milwaukee  & 
Mississippi  Railroad  Company;  the  act  of  the  state  legis- 
lature of  March  31,  1860,  to  facilitate  the  formation  of  a 
corporation  with  the  franchises  of  the  original  company, 
upon  foreclosure  of  their  mortgage,  and  the  formation 
thereunder,  by  the  purchasers,  of  the  Milwaukee  &  Prairie 
du  Chien  Railway  Company;  and  the  conveyance  of  the 
road  and  franchises  by  that  company  to  the  defendant  by 
deed  of  August  1,  1868 ;  and  we  find  an  act  of  February 
15,  1868,  ratifying  the  purchase  by  the  defendant  of  the 
road  and  franchises.  We  presume  that  the  purchase  had 
been  then  made,  though  the  deed  followed  after. 

We  have  not  considered  the  title  of  the  defendant  to  this 
road,  because  we  think  it  immaterial  here.  The  road  is 
actually  operated  by  the  defendant,  and  is,  therefore,  in- 
cluded in  the  same  class  with  the  other  roads  of  the  defend- 
ant by  chapter  273.  And  the  question  before  us  must  rest 
on  the  charter  of  the  road,  not  on  the  title  of  the  defend- 
ant. In  saying  this,  we  imply  no  doubt  of  the  title;  we 
only  say  that  we  have  not  investigated  it,  because  it  does 
not  enter  into  any  question  before  us. 

The  charter  of  1847-1848  appoints  commissioners  to 


Opinions  of  Chief  Justice  Ryan.  356 

take  subscriptions  of  stock;  and,  upon  subscription  and 
payment  of  stock  as  therein  directed,  creates  the  subscrib- 
ers a  corporation  vested  with  the  franchises  of  the  act. 
This  act  does  not  create  a  corporation  by  its  own  force 
only;  the  prescribed  subscription  is  a  condition  precedent 
to  the  existence  of  the  corporation.  The  corporation  came 
into  existence,  probably,  upon  the  election  of  directors  by 
the  subscribers.  Putnam  v.  Sweet,  1  Chandler,  286. 

It  is  not  pleaded,  and  does  not  appear,  when  the  corpo- 
ration was  actually  organized.  For  all  that  appears  here, 
it  may  have  been  at  any  time  between  1847  and  1850.  We 
are  inclined  to  think,  however,  that  under  such  a  charter, 
when  the  existence  of  the  corporation  appears,  as  here, 
there  is  a1  presumption  that  it  was  organized  immediately 
after  the  passage  of  the  charter.  In  this  case,  there  is  cer- 
tainly a  presumption  that  the  corporation  was  in  esse  be- 
fore the  passage  of  the  supplementary  act  of  March  11, 
1848,  because  the  act  deals  with  it  as  an  existing  corpora- 
tion by  name.  This  is  not,  of  course,  conclusive  of  the 
fact,  but  it  is  all  that  we  have  in  this  case  now;  and  we 
must  presume,  for  the  purposes  of  this  motion,  that  the 
charter  was  accepted  and  the  corporation  organized  under 
it,  before  the  adoption  of  the  state  constitution  in  1848. 

The  original  charter  contains  a  franchise,  upon  comple- 
tion of  the  road  or  any  ten  miles  of  it,  to  take  such  toll  as 
the  company  should  think  reasonable. 

The  road  was  not  constructed  till  after  the  adopt'ion  of 
the  constitution,  but  it  was  constructed  under  the  terri- 
torial charter.  And  the  title  to  the  franchise,  which  runs 
with  the  road,  dates  from  the  organization  of  the  corpora- 
tion. 

There  may  be  facts  which  are  not  before  us,  or  there 
may  be  legislation  which  we  have  not  been  able  to  find, 


357  Attorney  General  v.  Railroad  Cos. 

which  might  operate  to  make  the  defendant  hold  the  road 
built  in  pursuance  of  the  territorial  charter,  under  fran- 
chises granted  to  the  defendant,  or  to  the  defendant's 
grantor,  by  the  state,  and  so  bring  the  franchises  of  this 
road  under  the  reserved  power  in  the  constitution.  On 
the  argument,  we  called  on  the  attorney  general  for  infor- 
mation on  this  point;  we  were  only  informed  that  the  ter- 
ritorial charter  contained  a  reserved  power  to  alter  or  re- 
peal. 

On  examination,  we  find  this  to  be  a  mistake.  The  only 
power  reserved  is  in  section  20  of  the  act.  And  that  only 
provides  that  in  case  of  violation  of  the  charter  by  the  com- 
pany, the  territorial  or  state  legislature  might  resume  the 
rights  and  privileges  granted  by  it. 

The  right  reserved  in  this  section  is  dependent  on  viola- 
tion of  the  charter.  That  must  first  be  established.  That 
is  clearly  a  judicial  function.  We  need  not  stop  to  in- 
quire whether  the  territorial  legislature  could  have  exer- 
cised such  a  function,  under  such  a  clause,  and  thereupon 
repeal  the  charter ;  nor  whether  the  state  legislature  could 
do  it  now.  '  It  is  enough  that  neither  has  done  it.  And,  in 
any  case,  the  power  reserved  is  simply  one  of  repeal,  which 
can  in  no  way  aid  the  application  of  chapter  273  to  the 
road  built  under  the  territorial  charter. 

Sections  1  and  2  of  art.  XIV,  of  the  state  constitution 
provide,  if  provision  were  necessary,  for  the  continuance  of 
the  territorial  charter  in  force  under  the  state  government. 

We  have  carefully  examined  the  several  acts  of  the  state 
legislature  applicable  to  the  title  of  this  road,  so  far  as  it 
is  disclosed  to  us ;  and  we  find  nothing  to  defeat  or  impair 
the  franchises  of  1847,  as  appurtenant  to  this  road,  to  this 
day.  Sec.  1  of  the  act  of  1860,  and  sec.  33  of  ch.  79  of  the 
Revised  Statutes,  both  provide  that  the  purchasers  on  the 


Opinions  of  Chief  Justice  Ryan.  358 

foreclosure  should  take  the  road  with  the  franchises  relat- 
ing to  it,  as  granted  to  the  original  company.  And  this 
seems  to  be  recognized  by  the  act  of  1868.  This  is  not  a 
new  grant  of  franchise.  The  state  had  licensed  the  mort- 
gage of  the  road  and  franchise,  the  corporation  had  mort- 
gaged the  road  and  franchise,  and  both  were  vested  in  the 
purchasers  by  operation  of  law.  The  provision  of  the  act 
of  1860  was  only  declaratory  of  an  existing  right.  And 
as  far  as  the  facts  are  before  us,  we  see  nothing  to  sever  the 
territorial  charter  from  the  road,  or  to  operate  as  a  surren- 
der of  that  charter  or  as  a  relinquishment  of  the  franchises 
granted  by  it  or  as  an  acceptance  of  new  franchises  from 
the  state,  to  bar  the  corporation  operating  the  road  from 
relying  on  the  franchises  granted  by  the  territory.  Neither 
party  appears  to  have  investigated  the  facts,  and  they  may 
not  be  all  before  us.  We  rest  this  opinion  on  what  is  be- 
fore us.  And  we  hold  the  territorial  charter  of  1847,  en- 
larged by  the  territorial  act  of  1848,  to  be  the  existing 
charter  of  the  road  built  under  it  from  Milwaukee  to 
Prairie  du  Chien. 

This  chapter,  being  accepted — as  we  are  bound  here  to 
assume — before  the  adoption  of  the  state  constitution,  is 
not  affected  by  the  reserved  power  in  that  instrument.  And 
it  is  undoubtedly  a1  contract  within  the  rule  in  the  Dart- 
mouth College  case,  which  the  state  legislature  cannot  im- 
pair. And  we  have  therefore,  the  direct  question,  whether 
the  franchise  granted  by  it,  to  take  such  tolls  as  the  com- 
pany should  "from  time  to  time  think  reasonable,"  is  part 
of  the  obligation  of  the  contract  which  the  state  cannot  im- 
pair, and  whether  it  would  be  impaired  by  the  application 
to  it  of  the  rule  of  fixed  maximum  tolls  prescribed  by  chap- 
ter 2Y3. 

We  are  of  opinion  that  the  franchise  is  not  one  vesting 


359  Attorney  General  v.  Railroad  Cos. 

in  the  corporation  an  absolute  right  of  exacting  whatever 
tolls  it  might  see  fit.  The  courts  have  authority  to  limit 
the  right  to  reasonable  tolls ;  to  tolls  reasonable,  not  in  the 
arbitrary  judgment  of  the  corporation,  but  in  fact.  That 
is,  indeed,  as  against  a  great  railroad  company,  not  a  very 
effective  remedy.  But  the  law  gives  the  remedy  to  all  ag- 
grieved by  the  exaction  of  unreasonable  tolls.  The  ques- 
tion here,  however,  is  not  what  the  courts  can  do  to  con- 
trol the  exercise,  but  what  the  legislature  can  do  by  statute 
to  limit  the  right  of  a  franchise  so  broad  that  it  seems  to 
invite  extortion. 

We  have  already  sustained  the  power  of  the  legislature 
to  limit  rates  of  toll  of  railroads  subject  to  legislative  con- 
trol. But  that  power  rests  on  the  authority  of  the  legisla- 
ture, not  on  the  reasonable  rate  of  tolls  fixed.  And  the  re- 
straint of  a  franchise  to  take  reasonable  tolls,  to  tolls  rea- 
sonable in  fact,  is  a  judicial,  not  legislative  function.  Any 
authority  of  the  legislature,  not  under  the  reserved  power 
of  the  constitution,  to  regulate  tolls  under  a  franchise  to 
take  tolls,  cannot  be  derived  from  the  judicial  function, 
but  must  rest  in  some  proper  legislative  function. 

And  therefore,  as  far  as  the  legislative  power  over  it  is 
concerned,  this  must  be  taken  as  a  valid  and  absolute  fran- 
chise to  take  tolls  at  discretion. 

And  here,  again,  we  think  that  the  question  of  the  right 
to  take  tolls,  without  a  franchise  to  take  them,  does  not 
arise.  Because  the  legislature  has  given  and  the  corpora- 
tion has  accepted  a  franchise  to  take  them.  Whatever  right 
there  might  have  been  outside  the  franchise,  is  merged  in 
the  franchise.  Both  parties  are  bound  by  the  franchise. 
Viewed  as  a  contract,  the  franchise  is  the  written  agree- 
ment between  the  parties  on  the  subject.  Had  we  been  able 
to  agree  with  the  defendant's  counsel,  that  the  right  to  take 


Opinions  of  Chief  Justice  Ryan.  360 

tolls  is  not  derived  from  the  franchise,  but  is — in  the  lan- 
guage of  Mr.  Justice  Strong — an  attribute  of  ownership; 
ownership,  we  are  inclined  to  think  that  we  might  have 
ruled  this  point  differently.  But  we  have  to  do  here  with 
the  right  under  the  franchise,  not  with  a  right  which  might 
have  existed  without  the  franchise. 

We  have  no  doubt  of  the  general  authority  of  a  state  leg- 
islature to  regulate  the  tolls  of  a  corporation  of  this  char- 
acter, as  a  necessity  of  public  welfare  and  public  order, 
under  the  sovereign  power  of  police,  when  the  exercise  of 
that  power  is  not  in  some  way  suspended  or  restrained. 

But  the  right  of  the  corporation  here  to  take  tolls  at  dis- 
cretion, being  thus  fixed  by  express  franchise  in  their 
charter,  there  seems  to  us  to  be  no  room  for  doubt  that, 
viewing  the  charter  as  a  contract,  the  franchise  is  a  posi- 
tive grant  to  take  tolls  in  the  manner  and  to  the  extent  pre- 
scribed by  it,  subject  to  such  judicial  construction  and  con- 
trol as  it  may  bear ;  and  as  a  vital  part  of  the  contract  of 
the  charter,  within  the  authorities. 

We  are  not  considering  the  charter  as  a  mere  statute. 
We  are  considering  it,  in  obedience  to  the  Dartmouth  Col- 
lege rule,  as  a  contract.  We  are  not  giving  our  own  views 
of  its  effect.  We  are  looking  at  it  in  the  mirage  of  federal 
construction.  Considering  this  matter  of  purely  state  law 
and  state  polity,  we  are  sitting  in  vinculis,  bound  by  an  in- 
terpretation of  the  prohibition  in  the  federal  constitution, 
on  a  subject  with  no  federal  relation,  which  we  think  it 
ought  not  to  bear,  and  which,  it  is  admitted,  it  was  not  in- 
tended to  bear;  but  which,  while  it  stands,  emasculates 
state  authority  over  state  corporations.  We  are  sitting  on 
this  question  of  state  law  and  state  polity,  not  so  much  as 
the  supreme  court  of  Wisconsin,  as  an  inferior  federal 
court  And  we  are  bound,  on  this  subject,  to  rule,  not  as 


361  Attorney  General  o.  Railroad  Cos. 

we  think,  but  as  the  federal  supreme  court  thinks.  The 
adjudications  of  this  court  on  state  law  and  state  policy, 
having  no  possible  relation  to  federal  law  or  federal  policy, 
have  been  frequently  overruled  by  that  court,  without  ex- 
cuse found  in  the  federal  constitution.  We  do  not  mean 
to  give  an  opportunity  now,  with  excuse.  On  this  point, 
we  admit  and  defer  to  their  authority.  It  is  evil  example, 
subversive  of  judicial  order  and  judicial  authority,  not 
becoming  judges  or  courts,  to  disregard  the  authority  of 
courts  within  their  peculiar  and  appropriate  jurisdiction; 
whether  it  be  of  federal  by  state  courts,  or  of  state  courts 
by  federal.  We  do  not  propose  to  follow  a  bad  example. 
And,  in  all  questions  under  the  federal  constitution,  it  is 
the  duty  and  choice  of  this  court  to  follow,  as  nearly  as  it 
can,  the  principles  and  spirit  of  the  adjudications  of  the 
federal  supreme  court. 

We  think  that  the  state  ought  to  possess  the  same  power 
over  this,  as  over  other  railroads.  And  we  think  that  the 
right  of  the  state  to  control  territorial  charters,  independ- 
ently of  the  reserved  power,  ought  to  exist,  as  one  well 
founded  in  principle.  We  are  even  inclined  to  think  that 
the  weight  of  state  authority  is  in  favor,  rather  than  against 
it,  even  under  the  Dartmouth  College  rule.  We  have  con- 
sidered, with  great  interest,  an  able  and  instructive  note 
of  Judge  Eedfield  to  the  Philadelphia,  W.  &  B.  E.  E.  Co. 
v.  Bowen,  Am.  Law  Eeg.,  March,  1874.  We  think,  how- 
ever, that  the  distinguished  jurist  had  too  little  in  his  view 
the  spirit  and  scope  of  the  decisions  of  the  supreme  court 
of  the  United  States;  and  that  he  shows  rather  what  the 
law  ought  to  be,  and  would  be  but  for  those  decisions,  than 
what  it  is  under  them.  He  seems  to  think  that  the  Dart- 
mouth College  rule  is  being  pushed  to  such  an  extreme  as 
will  ultimately  defeat  it  altogether,  by  a  reductio  ad  absur- 


Opinions  of  Chief  Justice  Ryan.  362 

dum.  So  many  are  beginning  to  think,  and  so  we  think. 
But  we  think  that  he*  errs  in  laying  the  blame  on  those  who 
oppose  the  extent  of  the  rule,  which  we  think  belongs  to 
those  who  support  it  But,  after  very  deliberate  considera- 
tion, we  find  that  principle  and  state  authority  leave  us  no 
room  for  doubt,  that  this  case  comes  within  the  prohibition, 
under  the  decisions  of  the  supreme  court  of  the  United 
States. 

•  We  think  that  the  rule  to  be  gathered  from  all  the  de- 
cisions, and  which  should  govern  us,  is  accurately  stated  in 
Judge  Cooley's  excellent  work,  and  we  give  it  in  his  own 
words : 

"The  limit  to  the  exercise  of  the  police  powers  in  these 
cases  must  be  this :  the  regulations  must  have  reference  to 
the  comfort,  welfare  or  safety  of  society ;  they  must  not  be 
in  conflict  with  any  provision  of  the  charter;  and  they 
must  not,  under  pretense  of  regulation,  take  from  the  cor- 
poration any  of  the  essential  rights  or  privileges  which  the 
charter  confers.  In  short,  they  must  be  police  regulations 
in  fact,  and  not  amendments  of  the  charter  in  curtailment 
of  the  corporate  franchise."  Cooley's  Const.  Law,  577". 

The  fixed  limitations  of  toll  in  chapter  273,  if  applied 
to  the  territorial  franchise,  would  limit  tolls  under  the  lat- 
ter, whether  the  fixed  rates  be  reasonable  or  not.  And  we 
think  that  we  have  sufficiently  explained  the  conflict  be- 
tween the  two,  to  show  that  the  state  act  does  essentially 
limit  a  right  which  the  territorial  charter  confers. 

The  very  point  which  arises  here  has  not,  so  far  as  we 
are  aware,  been  passed  upon  by  the  supreme  court  of  the 
United  States.  But  the  principle  governing  it  has  been,  in 
many  cases.  We  shall  not  attempt  to  review  the  cases.  We 
will  only  say  that  a  court  which  has  several  times  held  that 
state  relinquishment  of  the  sovereign  right  of  taxation  in 


363  Attorney  General  v.  Railroad  Cos. 

favor  of  a  corporation  is  a  valid  contract  which  the  state 
cannot  impair  by  resumption  of  the  right  to  tax,  is  not  to 
be  expected  to  sustain  such  a  substantial  impairment  of  a 
franchise  to  take  toll,  which,  at  its  worst,  could  effect  no 
public  power  of  the  state,  and  could  only  be  abused  by  in- 
dividual extortion.  And,  in  view  of  all  their  decisions, 
and  in  submission  to  them,  we  feel  bound  to  hold  the  ter- 
ritorial charter  of  1847,  enlarged  by  the  territorial  act  of 
1848,  to  be  a  contract  within  the  prohibition  of  the  fed- 
eral constitution,  the  obligation  of  which  the  state  can  pass 
no  law  to  impair ;  and  that  the  provisions  of  chapter  273, 
of  1847,  limiting  the  tolls  of  railroads  operated  by  the 
Chicago,  Milwaukee  &  St.  Paul  Company,  if  applied  to  the 
road  from  Milwaukee  to  Prairie  du  Chien,  built  under  that 
charter,  would  impair  the  obligation  of  the  contract  of  that 
charter,  and  that  therefore  those  provisions  of  chapter  273 
do  not  apply  to  that  road. 

If,  indeed,  that  charter  was  not  accepted  and  the  corpo- 
ration under  it  was  not  organized  before  the  adoption  of 
the  state  constitution,  a  grave  question  would  arise  of  the 
effect  of  the  reserved  power  in  the  state  constitution  upon 
the  charter  accepted  and  the  corporation  organized,  after 
that  instrument  had  gone  into  operation.  But  that  ques- 
tion is  not  here,  and  we  express  no  opinion  on  it. 

VIII.  Before  the  commencement  of  the  argument  an  ob- 
jection was  made  to  the  hearing  of  these  motions  on  the 
unverified  informations  of  the  attorney  general,  unsup- 
ported by  affidavit.  We  hold,  on  the  authority  of  the  At- 
torney General  v.  The  Cohoes  Co.,  6  Paige,  133,  and  other 
cases,  that  an  information  of  the  attorney  general  ex  ofjl- 
cio  acting  under  the  sanction  of  his  oath  of  office,  is  equiv- 
alent to  a  bill  in  chancery  verified  on  information  and  be- 
lief. Like  such  a  bill,  it  will  call,  in  proper  cases,  for  an- 


Opinions  of  Chief  Justice  Ryan.  364 

swer  under  oath.  But,  as  in  case  of  such  a  bill,  an  injunc- 
tion will  not  usually  go  upon  it,  unsupported  by  positive 
affidavit,  until  after  the  defendant  has  had  the  opportunity 
to  contradict  it  on  oath,  and  has  failed  to  do  so. 

We  say  this  now  only  for  the  purpose  of  settling  the 
practice.  In  these  cases  the  difficulty  was  cured  by  afficla- 
vits  filed  by  the  attorney  general  before  the  motions  were 
heard,  which  the  defendants  had  leave  to  answer,  of  which 
they  declined  to  avail  themselves. 

These  affidavits,  uncontradicted,  establish  what  we  pre- 
sume that  defendants  denied  only  pro  forma,  the  disre- 
gard of  the  maximum  rates  of  toll  prescribed  by  chapter 
273,  of  1874.  Indeed  some  of  the  affidavits  filed  by  the 
Chicago,  Milwaukee  &  St.  Paul  Company  admit  the  viola- 
tion of  that  rule  of  rates,  and  some  of  those  filed  by  the 
Chicago  &  Northwestern  Company  very  forcibly  imply  a 
similar  violation.  We  therefore  take  the  fact  to  be  un- 
disputed. 

IX.  These  views  substantially  dispose  of  these  motions. 
A  moving  appeal  was  made  to  us  on  the  argument,  if  we 
should  sustain  these  informations,  to  withhold  the  writs  in 
our  discretion.  The  appeal  was  such  and  so  made  as  could 
not  fail  to  leave  a  deep  impression  on  our  minds.  It  was 
founded  on  very  strong  affidavits  of  the  injurious  effects  to 
these  defendants  and  to  the  public  interest  in  their  well 
doing,  which  it  wras  feared  would  result  from  the  enforce- 
ment of  the  rates  of  toll  prescribed  by  the  statute.  These 
affidavits  afe  entitled  to  great  respect.  They  are  not  the 
affidavits  of  speculators,  at  a  distance,  in  the  affairs  and 
control  of  these  railroads,  reputed  to  play  with  the  public 
and  private  interests  involved  in  them,  with  cruel  success. 
They  are  chiefly  the  affidavits  of  well  known  men  of  high 
character  and  standing,  of  great  experience  in  the  affairs 


365  Attorney  General  v.  Railroad  Cos. 

of  railroads,  and  especially  conversant  with  these  roads. 
And  we  may  well  be  permitted  to  say  here  that  there  is 
great  cause  for  regret  that  these  men  and  others  like  them, 
acquainted  with  the  state  and  its  people,  their  resources 
and  their  needs,  and  likely  to  act  in  sympathy  with  them 
as  well  as  for  the  true  interest  of  the  roads,  have  not  been 
independent  in  the  local  management  of  these  corporations. 
If  they  had  been,  we  are  quite  confident  that  there  would 
have  been  no  cause  for  this  unfortunate  controversy.  But 
the  affidavits,  after  all,  give  us  only  their  theories,  which 
do  not  satisfy  us  of  the  ruin  which  they  foretell.  Still  the 
appeals  seemed  so  urgent  and  so  sincere  that  they  left  im- 
pression enough  on  our  minds  to  make  us  somewhat  re- 
luctant to  grant  the  writs.  But  we  have  no  discretion  to 
disregard  our  plain  duty. 

It  is  true  that  it  is  said  that  the  granting  or  withholding 
of  an  injunction  rests  in  the  sound  discretion  of  the  court. 
But  that  is  judicial  discretion,  not  willful  choice.  And 
the  rule  is  applied  to  injunctions  in  aid  of  private  reme- 
dies. The  same  rule  applies  to  mandamus  in  cases  of  pri- 
vate right.  But  it  does  not  apply  to  the  application  of  the 
writ  to  things  publici  juris.  There  the  writ  goes  ex  debito 
justiciw.  The  court  has  no  discretion  to  withhold  it.  Tap- 
ping, 287. 

We  need  not  repeat  here  the  analogies  already  stated  be- 
tween the  two  writs,  used  as  prerogative  or  quasi  preroga- 
tive writs,  to  protect  public  right.  And  we  have  no  more 
discretion  to  withhold  injunction  to  restrain  violation  of 
public  right,  than  to  withhold  mandamus  to  enforce  public 
duty. 

We  have  held  that  here  is  positive  violation  of  positive 
public  law  to  positive  public  injury,  and  that  we  have  juris- 
diction of  this  writ,  as  a  prerogative  writ,  to  restrain  it. 


Opinions  of  Chief  Justice  Ryan.  366 

There  is  no  room  for  discretion.  The  duty  is  positive,  ex 
debito  justicice.  The  discretion  which  we  were  urged  to 
exercise  would  be  discretion  to  permit  the  violation  of  the 
laws  which  we  sit  here  to  enforce.  It  was  said  to  us  by 
counsel,  in  a  professional  and  not  offensive  sense,  that  we 
dare  not  issue  these  injunctions.  We  reply  that,  holding 
what  we  have  held,  we  dare  not  face  the  judgment  of  the 
profession  for  withholding  them. 

We  disregard  the  appeal  made  to  us  reluctantly.  But 
it  is  not  to  us  that  such  appeal  should  be  made.  We  had 
no  part  in  promoting  these  cases.  We  have  no  voluntary 
part  in  the  decision  of  them.  We  only  obey  the  law  as  we 
understand  it.  We  cannot  care  for  consequences.  We 
must  do  our  duty,  be  the  consequences  what  they  may.  If 
such  appeal  be  fit,  it  is  fit  to  make  to  the  attorney  general, 
not  to  us.  He  can  heed  it.  We  cannot. 

But  while  we  have  no  discretion,  we  have  power  to  im- 
pose terms  which  seem  to  us  just.  We  have  already  ex- 
pressed the  opinion  that  the  informations  in  the  nature  of 
quo  warranto,  pending  in  this  court  against  these  defend- 
ants, are  not  a  bar  to  these  informations,  and  our  reasons 
why  this  may  be  considered  the  better  remedy.  But  we 
do  not  think  that  the  attorney  general  should  have  both 
remedies  at  once.  He  has  an  election,  but  he  must  elect. 
If  he  has  these  injunctions,  he  should  dismiss  those  in- 
formations. And  time  will  be  necessary  to  these  defend- 
ants to  arrange  the  change  of  rates.  We  presume  that  the 
remaining  half  of  this  month  will  be  adequate. 

And  therefore,  before  these  injunctions  issue,  we  re- 
quire the  attorney  general  to  dismiss  the  pending  informa- 
tions in  the  nature  of  quo  warranto,  and  to  file  in  these 
causes  a  stipulation  signed  by  him  ex  officio,  and  approved 
by  the  court,  or  one  of  the  justices  of  the  court,  that  the 


367  Attorney  General  v.  Railroad  Cos. 

state  will  not  proceed  by  way  of  quo  warranto  for  forfeit- 
ure, or  for  contempt  in  violating  the  injunction  to  issue 
against  the  defendants,  for  any  violation  of  the  provisions 
of  chapter  273,  of  1874,  involved  in  these  causes,  done  or 
suffered  to  be  done  prior  to  the  first  day  of  October  next 

If  the  time  allowed  for  the  change  should  be  found  in- 
sufficient, the  defendants  may  move,  on  notice  and  proper 
proofs,  to  enlarge  it,  on  either  of  the  remaining  Tuesdays 
of  this  month. 

On  the  terms  stated,  the  injunctions  will  issue  as  to  all 
the  roads  of  the  Chicago  &  Northwestern  Company,  and 
as  to  all  the  roads  of  the  Chicago,  Milwaukee  &  St.  Paul 
Company,  except  the  road  from  Milwaukee  to  Prairie 
du  Chien,  built  under  the  territorial  charter  of  1847- 
1848. 

If  the  attorney  general  should  be  advised  that  the  corpor- 
ation under  the  territorial  charter  was  not  organized  until 
after  the  adoption  of  the  state  constitution,  he  will  be  at 
liberty  to  renew  his  motion  as  to  the  road  now  excluded 
from  the  jurisdiction. 

If  the  Chicago  &  Northwestern  Company  should  make 
it  appear  that  one  of  the  roads  now  included  in  the  injunc- 
tion was  organized  under  the  general  railroad  act  of  1872, 
they  will  be  at  liberty  to  move  to  dissolve  the  injunction  as 
to  such  road. 

But  if  such  motions  should  be  made,  they  will  be  heard 
only  on  the  particular  ground  reserved  in  each  case  in  this 
opinion. 

No  statute  could  have  force  to  abolish  any  writ  given 
to  this  court  by  the  constitution,  as  it  existed  when  the  con- 
stitution was  adopted.  And,  as  our  jurisdiction  is  founded 
on  the  writ  of  injunction,  we  think  it  better  practice,  in 
such  cases,  to  send  out  the  writ  itself. 


Opinions  of  Chief  Justice  Ryan.  368 

Upon  a  motion  for  rehearing,  the  following  opinion  was 
filed  by  Ryan,  Chief  Justice : 

In  passing  upon  the  principal  motion  of  the  attorney 
general  for  an  injunction  against  the  defendant,  we  ex- 
cepted  from  the  writ  then  allowed,  the  railroad  of  the  de- 
fendant from  Milwaukee  to  Prairie  du  Chien,  built  under 
the  territorial  charter  of  1847-1848.  There  was  then  no 
evidence  before  us  of  the  time  when  the  Milwaukee  & 
Waukesha  Railroad  Company  was  organized  under  that 
charter.  But  we  held  that,  in  the  circumstances,  and  es- 
pecially'because  there  seemed  to  be  a  recognition  of  the 
corporation  as  organized  in  the  territorial  act  of  1848,  there 
was  a  presumption  that  the  charter  was  accepted  and  the 
corporation  organized  before  the  adoption  of  the  state  con- 
stitution. But  there  was  sufficient  doubt  of  the  actual  fact 
to  induce  us  to  give  leave  to  the  attorney  general  to  renew 
his  motion  so  as  to  include  that  road  in  the  injunction,  if 
he  should  be  so  advised. 

He  has  accordingly  made  this  motion,  and  in  support  of 
it  he  produces  a  certified  copy  of  the  statement  of  subscrip- 
tion and  payment  of  capital  stock,  required  by  sec.  2  of 
the  charter  of  February  11,  1847,  dated  April  5,  1849,  and 
filed,  as  the  section  required,  with  the  treasurer  of  Mil- 
waukee county,  in  the  same  month;  and  also  an  affidavit 
of  the  election  of  the  first  board  of  directors,  May  10,  1849. 

This  is  conclusive  of  the  fact  that  the  charter  was  ac- 
cepted and  the  corporation  organized  many  months  after 
the  adoption  of  the  constitution  and  the  admission  of  the 
state  into  the  Union  by  congress.  It  would  have  saved 
great  trouble  had  the  attorney  general  presented  the  fact 
on  the  first  motion. 

It  is  true  that  the  defendant  has  filed  an  affidavit  show- 


369  Attorney  General  v.  Railroad  Cos, 

ing  that,  as  early  as  November,  1847,  and  from  thence  till 
the  organization  of  the  corporation  in  1849,  action  was 
taken  by  the  commissioners  appointed  by  the  charter  to  re- 
ceive subscriptions  to  the  capital  stock  of  the  proposed  cor- 
poration, who  elected  a  president  and  secretary,  and  opened 
books  of  subscription  to  the  stock,  and  caused  application 
to  be  made  to  the  territorial  legislature  for  the  supplement- 
ary act  of  March  11,  1848,  all  tending  towards  the  organ- 
ization of  1849.  The  affidavit  states  that  by  April  5, 1849, 
the  necessary  subscriptions  and  payments  were  made,  but 
it  does  not  state  that  any  subscription  was  made  before  the 
establishment  of  the  state  government. 

We  do  not  think  that  these  statements  touch  the  con- 
clusion to  which  we  have  come.  The  proceedings  led  up  to 
the  acceptance  of  the  charter,  but  could  not,  by  the  terms  of 
the  charter,  operate  as  an  acceptance  of  it.  Even  if  it  had 
appeared  that  there  were  subscriptions  to  the  stock  before 
the  territory  had  become  a  state,  such  subscriptions,  short 
of  $100,000,  required  by  the  charter,  could  give  no  right 
to  the  subscribers  to  accept  the  charter.  The  terms  of  the 
charter  expressly  exclude  such  a  right.  The  charter  pre- 
scribes the  conditions  of  acceptance.  It  gives  no  such  right 
to  the  commissioners.  They  were  only  officers  of  the  ter- 
ritory to  fulfill  a  given  function.  And  it  gives  no  such 
right  to  the  subscribers,  until  they  should  have  subscribed 
the  entire  capital  stock  and  made  certain  payments  towards 
it.  Then,  and  then  only,  the  charter  confers  on  them  the 
right  of  acceptance,  in  the  manner  which  it  provides ;  that 
is,  by  filing  the  very  certificate  of  April  5,  1849.  On  and 
by  the  doing  of  that,  the  charter  declares  that  the  subscrib- 
ers should  be  created  a  corporation.  And  thereupon  an 
election  of  directors  should  be  had,  until  which  the  com- 
missioners should  act  as  directors.  There  may  be  some 
24 


Opinions  of  Chief  Justice  Ryan.  370 

doubt  when  the  corporation  actually  came  in  esse,  whether 
en  the  filing  of  the  statement  or  on  the  election.  Putman 
f.  Sweet,  1  Chandler,  268.  That  question  is  not  material 
here.  It  is  very  certain  that,  by  the  terms  of  the  charter, 
it  was  accepted  by  the  making  or  the  filing  of  the  statement, 
and  not  before. 

We  have  been  referred  by  the  defendant's  counsel  to 
some  authorities  holding  that  acceptance  of  a  charter  ap- 
plied for,  or  beneficial  to  the  corporators,  may  be  pre- 
sumed ;  and  that,  in  similar  cases,  slight  acts  of  the  corpor- 
ators looking  towards  acceptance  are  sufficient  to  establish 
it.  But  these  authorities  relate  to  charters  naming  the 
corporators  and  declaring  them  incorporated,  without  pre- 
liminary steps,  ipso  facto,  by  force  of  the  charter.  These 
rules  have  no  application  to  charters  not  naming  the  cor- 
porators, and  prescribing  conditions  and  formalities  by 
which  indeterminate  persons  may  become  incorporated. 
We  take  the  distinction  to  be  correctly  stated  by  Angell  & 
Ames,  §  83 :  "A  corporation  created  by  statute  which  re- 
quires certain  acts  to  be  done  before  it  can  be  considered 
in  esse,  must  show  such  acts  to  have  been  done,  to  establish 
its  existence;  but  this  rule  does  not  apply  to  corporations 
declared  such  by  the  act  of  incorporation." 

Such  a  charter  is  held  to  be  a  contract  between  the  polit- 
ical body  granting  it,  and  the  corporators  under  it.  The 
territory  of  Wisconsin  proffered  such  a  contract  by  the 
charter  in  question.  So  proffered,  it  remained  a  mere  pro- 
posal, in  fieri,  until  accepted  according  to  its  terms.  Who 
could  accept  it  ?  "Not  the  commissioners,  as  we  have  seen. 
Only  the  subscribers.  When  could  they  accept  it  ?  Only 
upon  subscription  of  the  full  amount  of  capital  stock. 
How  could  they  accept  it  ?  By  making  and  filing  the  state- 
ment of  subscription.  And  the  commissioners  could  do  no 


371  Attorney  General  v.  Railroad  Cos. 

act,  at  any  time,  tending  to  prove  acceptance,  because  they 
had  no  right  to  accept.  And  the  subscribers  could  do  no 
act  tending  to  prove  acceptance,  before  subscription  of  the 
whole  capital  stock ;  because,  until  then,  they  had  no  right 
to  accept.  Such  evidences  of  acceptance  as  the  defendant 
relies  on,  must  be  accompanied  by  a  present  right  to  ac- 
cept, or  they  go  for  nothing. 

The  territorial  charter  remained  a  naked,  unaccepted 
proposition  until  April  5,  1849,  long  after  the  territory 
had  ceased  and  the  state  was  in  existence. 

The  defendant,  however,  insisted  that,  be  this  as  it 
might,  the  territorial  act  of  March  11,  1848,  recognized  the 
corporation  as  organized ;  and  that  therefore  it  is  not  com- 
petent for  the  state  now  to  question  its  organization  prior 
to  the  passage  of  that  act.  The  act  of  1848,  does  prima 
facie  imply  such  a  recognition;  but  as  we  said  in  passing 
on  the  former  motion,  that  is  not  conclusive.  That  is  a 
matter  on  which  the  legislature  might  well  be  misled  or 
misinformed.  And,  even  if  the  act  declared  in  terms  that 
the  corporation  had  then  been  organized,  we  cannot  see  how 
such  a  declaration  could  prevail  over  the  manifest  fact, 
that  the  corporation  was  not  organized  for  upwards  of  a 
year  after.  But  the  act  contains  no  such  declaration.  It 
is  entitled  an  act  supplementary  to  the  original  charter, 
and  gives  new  powers  to  the  corporation  authorized  by  the 
original  charter,  giving  them  throughout  to  the  corporation 
so  authorized,  by  its  corporate  name.  Without  the  fact  of 
the  subsequent  organization,  that  seems  to  imply  present 
organization  of  the  corporation.  But  the  language  of  the 
act  may  well  go  upon  either  theory,  that  the  legislature 
understood  that  the  corporation  was  not  organized,  or  that 
it  was  misled  into  a  belief  that  it  was.  The  use  of  the  cor- 
porate name  throughout  the  act  does  not  necessarily  imply 


Opinions  of  Chief  Justice  Ryan.  372 

that  the  corporation  was  already  in  esse.  It  is  quite  con- 
sistent with  the  truth  that  it  was  still  only  in  posse.  And 
the  fact,  now  appearing,  does  away  with  a  different  pre- 
sumption of  fact,  as  we  held  it  would  do  in  our  former 
opinion. 

Some  cases  were  cited  to  show  that  legislative  recog- 
nition in  a  subsequent  statute  of  a  corporation  de  facto, 
will  cure  irregularities  in  its  organization  and  waive  for- 
feitures incurred.  People  v.  Manhattan  Co.,  9  Wend.  351  j 
Railroad  Co.  v.  Barnard,  31  Barb.  258.  We  do  not  perceive 
the  application  of  these  cases  to  aid  the  view  of  the  defend- 
ant. The  principle  on  which  they  rest  appears  to  us  to  go 
the  other  way.  Such  recognition  has  relation  to  a  corpo- 
ration in  esse,  waiving  irregularity  and  forfeiture.  An  act 
of  the  legislature  relating  to  a  corporation,  not  creating  or 
authorizing  one,  may  well  have  the  effect  of  condonation, 
but  not  of  creation.  It  goes  by  way  of  confirmation  or  re- 
lease ;  and  there  must  be  a  corporation  de  facto  to  be  con- 
firmed or  to  be  released.  Here  there  was  no  corporation 
de  facto  to  confirm  or  to  release.  The  inherent  trouble  of 
the  defendant's  position  is,  that  it  goes  to  contradict  an  ad- 
mitted fact,  and  to  give  life  to  a  corporation  a  year  or  so 
before  it  was  born. 

The  attorney  general  having  established  the  fact,  as  we 
now  hold  it  to  be  established,  we  signified  our  intention  to 
confine  the  further  discussion  of  this  motion  to  the  legal 
effect  of  the  fact  on  the  question  of  the  right  of  the  state  to 
alter  or  repeal  the  charter.  Two  other  points  were  dis- 
cussed, however,  which  we  shall  briefly  notice. 

It  was  urged,  against  the  views  we  had  before  expressed, 
that  the  state  statutes  authorizing  the  mortgage  of  the  road 
built  under  the  territorial  charter,  and  authorizing  the  pur- 
chasers on  foreclosure  to  organize  anew  with  the  territorial 


373  Attorney  General  v.  Railroad  Cos. 

franchises,  operated  as  a  grant  from  the  state  of  the  fran- 
chises of  the  territorial  charter.  We  cannot  think  so,  for 
the  reasons  assigned  in  our  former  opinion.  The  fran- 
chise is  quasi  property;  and  by  whomsoever  held,  under 
whatsoever  chain  of  title,  is  derived  from  the  territorial 
charter,  not  from  the  state  statutes.  The  state  statutes 
did  not  create  it,  and  do  not  grant  it.  They  simply  author- 
ized the  sale  and  purchase,  and  the  organization  by  the 
purchasers  of  a  new  corporation,  to  hold  the  old  franchise, 
under  the  old  grant.  The  state  statutes  are  merely  en- 
abling acts,  conferring  no  franchise,  but  only  authorizing 
the  transfer  of  the  title  to  existing  franchises.  If  one 
purchase  under  a  statute  enabling  a  person,  otherwise  in- 
competent, to  convey,  or  enabling  a  corporation,  before  un- 
authorized, to  convey,  he  surely  does  not  take  his  title  from 
the  state;  he  takes  his  title  by  authority  of  the  state,  but 
he  takes  it  from  his  grantor.  The  title  of  the  Milwaukee 
&  Prairie  du  Chien  Company  to  the  franchise  was  derived 
from  the  territorial  charter,  though  so  derived  and  held  by 
permission  of  the  state.  The  question  turns  on  the  title 
of  the  vendor,  not  on  the  license  given  to  him  to  convey ;  on 
the  title  to  the  thing  purchased,  not  on  the  license  to  the 
purchaser  to  hold  it  The  authority  given  to  the  purchas- 
ers to  organize  a  corporation  to  operate  the  railroad,  is  very 
similar  to  authority  given  to  an  alien  to  hold  real  estate. 
Both  take  the  authority  from  the  state,  but  not  the  title. 
All  these  state  enabling  acts  might  be  repealed  without  im- 
pairing the  franchises  of  the  territorial  charter,  however 
the  repeal  might  affect  the  title  to  them.  We  have  no  doubt 
of  this  position;  and  we  think  that  it  is  fairly  recognized 
in  Vilas  v.  Milwaukee  &  P.  du  C.  E.  R.  Co.,  IT  Wis.  497. 
It  was  suggested  with  much  ingenuity  that,  as  the  terri- 
tory was  the  creature  of  the  United  States,  the  state  upon 


Opinions  of  Chief  Justice  Ryan.  374 

its  organization  succeeded  to  the  sovereign  rights  of  the 
United  States  in  the  territory,  as  well  those  reserved  by  the 
United  States  as  those  delegated  to  the  territorial  govern- 
ment; full  sovereignty  subject  only  to  the  federal  constitu- 
tion; and  that,  as  the  organic  act  of  congress  reserved  to 
that  body  the  right  to  annul  all  acts  of  the  territorial  legis- 
lature, the  state  succeeded  to  that  right.  We  cannot  think 
so.  Waiving  all  question  of  the  sovereign  rights  of  the 
United  States  over  the  territory,  the  state  came  into  the 
union  "on  an  equal  footing  with  the  original  states  in  all 
respects  whatever."  The  United  States  derive  their  pow- 
ers from  the  states,  not  the  states  theirs  from  the  United 
States.  And  though  Wisconsin  became  a  constituent  of 
the  United  States  "as  one  born  out  of  due  time,"  it  is  none 
the  less  an  equal  constituent  with  the  original  states.  On 
its  establishment,  it  took  no  governmental  rights  or  powers 
from  the  United  States,  as  a  state.  As  a1  member  of  the 
union,  it  took,  in  common  with  all  the  other  states,  such 
rights  as  the  federal  constitution  confers  on  the  original 
states,  as  members  of  the  union.  The  sovereignty  and 
rights  of  sovereignty  of  this  state  came  from  no  organized 
power.  They  are  inherent  in  and  are  derived  from  its  peo- 
ple. The  power  of  congress  over  the  territorial  legislation 
was  an  incident  to  the  territorial  condition,  and  lapsed, 
with  the  territorial  government,  when  the  state  came  into 
being.  The  state,  ipso  facto,,  assumed  all  political  author- 
ity within  its  boundaries,  not  limited  or  surrendered  by  the 
constitution  of  the  United  States.  And  the  source  of  all 
legislative  authority  within  its  bounds  must  now  be  found 
in  the  state  and  federal  constitutions,  and  nowhere  else. 

On  the  argument  of  the  principal  motion,  it  was  not 
suggested  at  the  bar,  and  it  wholly  escaped  our  attention, 
that  a  general  act  concerning  corporations  in  the  territorial 


375  Attorney  General  v.  Railroad  Cos. 

revision  of  1839  reserved  to  the  territorial  legislature  power 
to  amend,  alter  or  repeal  all  Subsequent  acts  of  incorpora- 
tion. This  act  remained  in  force  until  the  first  state 
revision  in  1849,  when  it,  with  many  others,  was  repealed; 
the  repeal  to  take  effect  January  1,  1850 ;  with  a  saving 
clause,  that  the  repeal  should  not  affect  any  right  accrued 
under  any  of  the  statutes  so  repealed. 

The  attorney  general  has  now  called  our  attention  to  this 
act.  And  it  was  argued  that  the  reserved  right  to  amend> 
alter  or  repeal  the  territorial  charter,  entered  into  and  be- 
came a  part  of  the  contract  of  the  charter,  when  accepted ; 
and  thus  became  a  right  accrued,  which  was  not  affected  by 
the  repeal;  that  the  repeal  could  not  take  effect  as  to  the 
territorial  charter,  so  long  as  the  charter  itself  remained 
unrepealed ;  the  reserved  power  continuing  so  far  to  exist, 
by  force  of  the  charter  itself,  as  a  contract.  These  are  nice 
questions,  not  necessary  to  the  disposition  of  this  motion, 
and  on  which  we  shall  therefore  not  express  an  opinion. 

If  the  territorial  charter  be  a  contract,  as  is  held,  it  be- 
came such  only  upon  acceptance  by  the  corporators.  Be- 
fore that,  as  already  seen,  it  rested  in  proposition,  to  ripen 
into  a  contract  upon  acceptance  in  the  manner  which  it 
provided.  And  being  so  accepted  after  the  territory  had 
ceased  to  exist,  it  never  became  a  contract  between,  the  ter- 
ritory and  the  corporation.  The  state  constitution,  as  al- 
ready observed,  continued  in  force  all  territorial  acts  not 
repugnant  to  it.  The  charter  thus  became  a  statute  of  the 
state.  And  its  acceptance,  after  the  organization  of  the 
state,  so  far  as  it  is  a  contract,  makes  it  manifestly  a  con- 
tract with  the  state.  There  was  then  no  other  public  au- 
thority or  political  body  with  which  the  corporators  could 
contract.  It  is  either  not  a  contract,  or  it  is  a  contract  with 
the  state. 


Opinions  of  Chief  Justice  Ryan.  376 

The  state  adopted  the  charter,  then  a  mere  statute,  not 
a  contract,  so  far  only  as  it  was  not  repugnant  to  the  con- 
stitution. With  the  reserved  power  of  the  territorial  act 
of  1839  entering  into  it  and  forming  a  part  of  it,  as  a  propo- 
sition, it  was  in  no  way  repugnant  to  the  constitution. 
Without  that  power,  it  manifestly  was.  It  is  true  that  the 
language  of  sec.  1,  art.  XI,  is  expressly  prospective.  But 
it  is  prospective  not  only  as  to  acts  of  incorporation,  but 
also  as  to  the  formation  of  corporations.  "All  general  and 
special  acts  enacted  under  the  provisions  of  this  section 
may  be  altered  or  repealed ;"  and,  "corporations  may  be 
formed,"  etc.  The  whole  section,  taken  together  signifies 
clearly,  not  only  that  no  charters  should  be  passed,  but  also 
that  no  corporations  should  be  formed,  not  subject  to  the 
reserved  power.  It  seems  to  us  quite  plain  that  a  territo- 
rial charter,  not  subject  to  the  reserved  power,  and  not  yet 
accepted,  was  "a  law  in  force  in  the  territory,  repugnant 
to  this  constitution."  Art.  XIV,  sec.  2.  And  the  position 
that  its  acceptance  from  the  state,  after  the  adoption  of  the 
constitution,  was  an  acceptance  subject  to  the  reserved 
power  in  the  territorial  act  of  1839,  and  in'  sec.  1  art.  XI 
of  the  constitution,  is  certainly  a  very  strong  one.  There 
is  high  authority  for  going  even  further.  After  saying 
that  a  private  corporation  may  forfeit  its  franchise  by  mis- 
user  or  nonuser,  Mr.  Justice  Story  says :  "This  is  the  com- 
mon law  of  the  land,  and  is  a  tacit  condition  annexed  to  the 
creation  of  every  such  corporation.  Upon  a  change  of  gov- 
ernment, too,  it  may  be  admitted  that  such  exclusive  priv- 
ileges attached  to  a  private  corporation  as  are  inconsistent 
with  the  new  government,  may  be  abolished."  Terrett  v. 
Taylor,  9  Cranch,  43.  A  fortiori  may  this  be  said  of  a 
charter  passed  before  and  accepted  after  a  change  of  gov- 
ernment. There  is  indeed  some  conflict  between  these 


377  Attorney  General  v.  Railroad  Cos. 

views  and  those  expressed  in  State  v.  Roosa,  11  Ohio  St. 
16.  But  we  shall  not  comment  on  that  case,  or  pursue  this 
consideration  further,  because  we  shall  not  rest  our  decision 
wholly  on  it,  as  there  appears  to  us  to  be  safer  and  clearer 
ground  for  it  to  stand  upon. 

It  was  quite  competent  for  the  state  constitution  to  have 
repealed  all  laws  of  the  territory  which  had  not  ripened 
into  contracts,  under  the  rule  in  Dartmouth  College  v. 
Woodward,  4  Wheat.  518.  So  was  it  competent  for  it  to 
adopt  them.  So,  also,  to  adopt  them  sub.  modo.  This 
last  is  what  the  constitution  did.  Sec.  1,  art.  XIV,  pro- 
vides that  all  rights,  actions,  contracts,  etc.,  as  well  of 
individuals  as  of  corporations,  shall  continue  and  be  as 
valid  as  if  no  change  from  territorial  to  state  government 
had  taken  place.  This  provision  is  in  favor  of  rights  and 
contracts,  and  is  properly  absolute.  It  might  have  applied 
to  the  territorial  charter,  if  then  accepted.  Sec.  2  pro- 
vides that  all  laws  then  in  force  in  the  territory,  not  re- 
pugnant to  the  constitution,  should  remain  in  force,  until 
they  should  expire  by  their  own  limitation  or  be  altered 
or  repealed  by  the  legislature.  This  provision  has  relation 
to  public  policy,  and  is  properly  subject  to  absolute  leg- 
islative control.  The  distinction  is  a  just  one,  and  is  very 
marked  and  manifest. 

It  may  be  that  the  territorial  laws  would  have  survived 
the  change,  without  this  constitutional  provision,  as  the 
laws  of  conquered  countries  are  said  to  survive  conquest. 
Even  in  that  case,  they  would  have  been  subject  to  repeal. 
But  the  territorial  laws  actually  survived  the  change  by 
force  of  no  such  principle,  but  by  the  express  provision 
of  the  constitution.  That  instrument  expressly  continued 
them  in  force,  until  altered  or  repealed  by  the  legislature, 
.and  no  longer.  The  effect  is  to  render  subject  to  subse- 


Opinions  of  Chief  Justice  Ryan.  378 

quent  alteration  or  repeal,  all  territorial  laws  which  were 
then  subject  to  alteration  or  repeal.  This  makes  all  such 
laws  expressly  subject  to  alteration  or  repeal,  the  identical 
words  of  the  reserved  power  in  section  1,  art.  XI.  And  this 
use  here  of  the  very  words  used  there,  and  tke  provision  for 
laws  expiring  by  their  own  limitations,  raise  a  very  strong 
presumption  that  section  2,  art.  XIV,  has  special  relation 
to  corporate  charters.  For  there  was  probably  no  statute  of 
the  territory  which  would  expire  by  its  own  limitation, 
except  such  charters.  Indeed  the  whole  provision  for  al- 
teration or  repeal  is  nugatory,  except  so  far  as  it  has  rela- 
tion to  charter  contracts  within  the  Dartmouth  College 
rule;  for  all  other  laws  would  be  subject  to  repeal  without 
any  provision  for  it.  The  provision  was  probably  intended, 
to  take  the  place  of  the  reserved  power  in  the  territorial 
R.  S.  of  1839,  which,  being  so  replaced,  was  accordingly  re- 
pealed in  the  first  state  revision  in  1849. 

We  therefore  hold  that  the  unaccepted  territorial  char- 
ter of  the  Milwaukee  and  Waukesha  Railroad  Company, 
till  then  subject  to  alteration  or  repeal  by  the  territorial 
legislature,  was  continued  in  force  by  sec.  2,  art.  XIV  of 
the  constitution,  subject  to  alteration  or  repeal  by  the  state 
legislature,  just  as  a  charter  granted  by  the  state ;  and  all 
the  positions  of  our  former  opinion  in  regard  to  state  char- 
ters apply  equally  to  the  territorial  charter  of  1847-1848. 

The  present  motion  of  the  attorney  general  must  there- 
fore be  granted. 

By  the  Court. — So  ordered. 

NOTE. 

(Each  case  in  this  note  after  which  is  placed  the  figure 
(1 )  relates  to  the  subject  discussed  in  the  foregoing  opinion 
numbered  I;  those  numbered  (2)  relate  to  the  subject  in. 
the  opinion  numbered  II,  etc.) 


379  Note  to  Attorney  General  v.  Railroad  Cos* 

Attorney  General  v.  The  Railroads,  supra,,  has  been 
cited  with  approval  by  the  Supreme  Court  of  Wiscon- 
sin, as  follows:  Atty.-Gen.  v.  West  Wis.  Ry.,7  36  Wis. 
496;  Atty.-Gen.  v.  "City  of  Eau  Claire,1  37  Wis.  443, 
444,  445;  Atty.-Gen.  v.  C.,  M.  &  St.  P.  Ry.,3  38  Wis. 
TO;  State  ex  rel.  Wood  v.  Baker,1  38  Wis.  79;  State 
ex  rel.  King  v.  Kromer,1  38  Wis.  79 ;  Hinckley  v.  C., 
M.  &  St.  P.  Ry.,3  38  Wis.  196;  State  ex  rel.  Cash  v. 
Supervisors  of  Juneau  County,1  38  Wis.  557;  Cleaver  v. 
Cleaver,1  39  Wis.  102;  Sellers  v.  Union  Lumbering  Co.,5 

39  Wis.   529;   State  v.  Doyle,1  40  Wis.   185;   State  ex 
rel.   Continental  Ins.   Co.   v.  Doyle,9   40  Wis.   236;  K 
W.  Mut.  Life  Ins.   Co.  v.  Germantown  Fire  Ins.   Co.,3 

40  Wis.  451;  Petition  of  Semler,1  41  Wis.  522;  Kim- 
ball  v.   Town  of  Rosendale,6    42   Wis.   416 ;    Gibson  v. 
Gibson,1  43  Wis.  33 ;  Curry  v.  C.  &  1ST.  W.  Ry.,1   43  Wis. 
670 ;  In  re  Ida  Louisa  Pierce,1  44  Wis.  418,  431,  434,  436, 
438,  440,  441,  456 ;  Ditberner  v.  C.,  M.  &  St.  P.  Ry.  Co.,4 
47  Wis.  142;  Cohn  v,  Wausau  Boom  Co.,5  47  Wis.  324; 
Smith  v.  Sherry,4  50  Wis.  212,  215 ;  Atty.-Gen.  ex  rel. 
Saunders  v.  A.  A.  &  K  I.,2  52  Wis.  480 ;  State  ex  rel. 
Hudd  v.  Timme,4  54  Wis.  338 ;  State  ex  rel.  Green  Bay, 
etc.,  Co.  v.  Jennings,1  56  Wis.  120;  State  ex  rel.  Agricul- 
tural Society  v.  Timme,3  56  Wis.  428  ;  Germantown  Farm- 
ers' Mut.  Ins.  Co.  v.  Dhein,3  57  Wis.  525 ;  State  v.  St. 
Croix  Boom  Corp.1  60  Wis.  567 ;  Jensen  v.  State,1  60  Wis. 
582;  Palms  v.  Shawano  County,3  61  Wis.  215;  Brock  'v. 
Dole,1  66  Wis.  149 ;  Ellis  v.  Milwaukee  City  Ry.  Co.,3 
67  Wis.  138 ;  Sleeper  v.  Goodwin,5  67  Wis.  589 ;  McCaul 
v.  Thayer,3  70  Wis.  149 ;  State  ex  rel.  Cream  City  Ry. 
Co.  v.  Hilbert,5  72  Wis.  193 ;  Purtell  v.  Chicago  Forge  & 
Belt  Co.,4  74  Wis.  134;  State  ex  rel.  Atty.-Gen.  v.  Cun- 
ningham,1- 2  81  Wis.  473,  489,  491,  492,  15  L.  R.  A.  565, 
570;  State  ex  rel.  Lamb  v.  Cunningham,1  83  Wis.  120, 
125,  156,  17  L.  R.  A.  161,  162,  172 ;  State  ex  rel.  Rade  v. 
Shaugnessey,1  86  Wis.  647;  Black  River  Imp.  Co.  v.  Hoi- 
way,6  87  Wis.  589 ;  State  ex  rel.  Lederer  v.  International 
Investment  Co.,1  88  Wis.  519 ;  Jackson  v.  The  State,1  92 
Wis.  425 ;  C.,  M.  &  St.  P.  Ry.  v.  City  of  Milwaukee,5  92 


Opinions  of  Chief  Justice  Ryan.  380 

Wis.  423 ;  In  re  Hartung,1  98  Wis.  141 ;  Mason  v.  City 
of  Ashland,5  98  Wis.  545 ;  State  ex  rel.  Hartung  v.  City 
of  Milwaukee,1'2  102  Wis.  512,  513,  514;  State  ex  rel. 
4th  Nat  Bank  v.  Johnson,1-  2-  4  103  Wis.  611,  615,  51  L. 
R.  A.  53,  73  note;  State  ex  rel.  Donnelly  v.  Kobe,6  106 
Wis.  424;  In  re  Town  of  Holland,  ^  2  107  Wis.  179; 
State  ex  rel.  Atty.-Gen.  v.  Portage  City  Water  Co.,2  107 
Wis.  447 ;  Linden  Land  Co.  v.  Milwaukee  El.  Ey.  &  Light 
Co.,4  107  Wis.  514;  In  re  Court  of  Honor  of  Illinois,1-  2 
109  Wis.  626,  627 ;  In  re  Stittgen,2  110  Wis.  629 ;  State 
ex  rel.  Tewalt  v.  Pollard,2  112  Wis.  236 ;  Seiler  v.  State,1-  2 
112  Wis.  299 ;  State  ex  rel.  Cook  v.  Houser,1-  2  122  Wis. 
552;  City  of  Madison  v.  Madison  Gas  &  El.  Co.,1*  2  129 
Wis.  249,  108  K  W.  66,  68. 

Atty.-Gen.  v.  Railroads,  supra,  has  been  cited  with 
approval  ouside  of  the  Wisconsin  Supreme  Court,  as  fol- 
lows: Wheeler  v.  N.  C.  Irrigation  Co.,1-2  9  Colo.  251, 
252,  253;  People  ex  rel.  Bentley  v.  McClees,1  20  Colo. 
409 ,  26  L.  R.  A.  648 ;  State  ex  rel.  County  Comrs.  of 
Volusia  County,6  28  Fla.  815 ;  Trust  Co.  of  Ga.  v.  State,2 
109  Ga.  749,  48  L.  R.  A.  526 ;  People  ex  rel.  Kocourek  v. 
Chicago,1  193  111.  510,  511,  512,  58  L.  R.  A.  840,  849, 
863  notes;  Hackett  v.  The  State,2  105  Ind.  259,  55  Am. 
Rep.  207 ;  L.  E.  &  St.  L.  Con.  Ry.  v.  Wilson,5  132  Ind. 
526,  18  L.  R.  A.  109 ;  Columbian  Athletic  Club  v.  State,2 
143  Ind.  103,  28  L.  R.  A.  729 ;  P.  C.  C.  &  St.  L.  Ry.  v. 
Montgomery,4  152  Ind.  12,  69  L.  R.  A.  881 ;  Muncie  Nat. 
Gas  Co.  v.  Muncie,1-  2  160  Ind.  106,  110,  60  L.  R.  A.  828, 
830;  State  ex  rel.  v.  Crawford,2  28  Kan.  733,  735,  42  Am. 
Rep.  186-8 ;  Com.  v.  McGovern,2  116  Ky.  233,  66  L.  R. 
A.  285 ;  Green  v.  Knife  Falls  Boom  Corp.,4  35  Minn.  157, 
159 ;  Brady  v.  Moulton,4  61  Minn.  186 ;  State  v.  Wiswell,4 
61  Minn.  466;  State  ex  rel.  Am.  Sav.  &  Loan  Assn.,1  64 
Minn.  360;  Brown  v.  Maplewood  Cemetery  Assn.,2  85 
Minn.  514;  State  ex  rel.  Atty.-Gen.  v.  Schweikart,2  19 
Mo.  517;  State  v.  Ubrig,2  14  Mo.  App.  414;  Sloan  v. 
Pac.  Ry.,3  61  Mo.  33,  21  Am.  Rep.  402 ;  Stockton  v.  Cen- 
tral Ry.,2  50  K  J.  Eq.  79,  80,  17  L.  R.  A.  108,  109 ;  State 
ex  rel.  Goodwin  v.  Nelson  Co.,1  1  K  Dak.  102,  8  L.  R. 
A.  289;  Anderson  v.  Gordon,1  9  N.  Dak.  482;  State  ex 


381  Note  to  Attorney  General  v.  Railroad  Cos. 

rel.  Lord  v.  Taylor,1  28  Ore.  518,  519,  31  L.  E.  A.  478; 
State  ex  rel  Dollard  v.  Comrs.  of  Hughes  County,1  1  S. 
Dak.  371,  10  L.  E.  A.  590 ;  Smith  v.  Cornelius,2  41  W. 
Va.  67,  30  L.  E.  A.  751 ;  L.  &  K  v.  Ey.  Comrs.  of  Tenn.,3 
19  Fed.  706 ;  Eat.  Foundry  &  Pipe  Works  v.  Oconto  Wa- 
ter Co.,5  52  Fed.  49;  Eep.  Mt.  Silver  Mines  v.  Brown,1 
58  Fed.  648,  24  L.  E.  A.  779;  U.  S.  v.  Joint  Traffic 
Assn.,2  76  Fed.  898 ;  Peik  v.  C.  &  K  W.  Ey.,3  94  U.  S. 
178 ;  Stone  v.  Wisconsin,10  94  U.  S.  182. 

It  has  been  cited  in  notes  to  the  following  cases  reported 
in  L.  E.  A.,  Am.  Dec.,  Am.  St.  Eep.  and  two  notes  in  the 
N".  J.  Eq.  Eeports,  where  valuable  collections  of  authori- 
ties may  also  be  found : 

Lawyers'  Reports  Annotated:  C.  &  ~N.  W.  Ey.  v.  Dey 
(35  Fed.  866),  1  L.  E.  A.  744;  Chic.  Mut.  Life  Indemnity 
Assn.  v.  Hunt  (127  HI.  257),  2  L.  E.  A.  551;  Haines  v. 
Hall  (17  Ore.  165),  3  L.  E.  A.  611;  Ulbricht  v.  Eufala 
Water  Co.  (86  Ala.  587),  4  L.  E.  A.  573 ;  U.  S.  v.  Jellico, 
Mt.  C.  &  C.  Co.  (46  Fed.  432),  12  L.  E.  A.  754;  W.  & 
L.  T.  E,  Co.  v.  Croxton  (98  Ky.  739),  33  L.  E.  A.  189; 
State,  Crow  v.  A.,  T.  &  S.  F.  Ey.  (176  Mo.  687),  63  L. 
E.  A.  764. 

American  Decisions:  Atty.-Gen.  v.  Cohoes  Co.  (6  Paige 
Ch.  133),  29  Am.  Dec.  757;  Barrow  v.  Eichard  (8  Paige 
Ch.  351),  35  Am.  Dec.  717;  Bigelow  v.  Hartford  Bridge 
Co.  (14  Conn.  565),  36  Am.  Dec.  502;  Com.  v.  Pitts- 
burgh, etc.,  Ey.  Co.  (24  Pa.  St.  159),  62  Am.  Dec.  376; 
Sandford  v.  Cataurisa,  etc.,  Ey.  (24  Pa.  St.  378),  64  Am. 
Dec.  672;  Bell  v.  Ohio,  etc.,  Ey.  Co.  (25  Pa.  St.  161), 
64  Am.  Dec.  690;  Mott  v.  Pa/Ey.  Co.  (30  Pa.  St.  9), 
72  Am.  Dec.  684;  People  v.  A.  &  V.  Ey.  (24  1ST.  Y.  261), 
82  Am.  Dec.  302;  Com.  v.  Smith  (10  Allen,  403),  87 
Am.  Dec.  678;  Coal  Co.  v.  Coal  &  Nav.  Co.  (50  Pa.  St. 
91),  88  Am.  Dec.  557-8. 

American  State  Reports:  State  v.  Atchison,  etc.,  Ey. 
Co.  (24  Neb.  143),  8  Am.  St.  Eep.  200;  State  v.  Cun- 
ningham (83  Wis.  90),  35  Am.  St.  Eep.  60. 

American  and  English  Railway  Cases:  Chattaroi  Ey.  v. 
Kinner  (81  Ky.  221),  14  Am.  &  Eng.  Ey.  Gas.  33;  Ex 
parte  Koehler  (30  Fed.  867),  29  Am.  &  Eng.  Ey.  Cas.  59;. 


Opinions  of  Chief  Justice  Ryan.  382 

Graham  v.  B.  H.  &  E.  Ry.  (118  U.  S.  161),  25  Am.  & 
Eng.  Ry.  Gas.  69. 

New  Jersey  Equity:  Palys  v.  Jewett,  32  1ST.  J.  Eq.  312 ; 
Stanford  v.  Lyon,  37  K  J.  Eq.  97. 

The  case  of  Atty.-Gen.  v.  The  Railroads,  supra,  never 
reached  the  Supreme  Court  of  the  United  States,  and  the 
objectionable  Wisconsin  statute  was  repealed  two  years 
later.  (See  ch.  57,  laws  1876). 

It  is  worthy  of  note,  however,  that  when  the  State  of 
Wisconsin  nearly  thirty  years  later  enacted  ch.  362,  laws 
of  1905,  embodying  even  more  stringent  provisions  con- 
cerning the  regulation  of  tolls  that  might  be  charged  by 
public-service  corporations,  the  law  was  acquiesced  in  by 
the  railroads  without  appeal  to  the  courts. 

The  so-called  "Granger  Cases"  arising  upon  the  laws 
of  the  States  of  Illinois,  Wisconsin,  Iowa,  and  Minnesota, 
.are  reported  under  various  titles  in  94  U.  S.  pp.  113  to  187. 


383  Craker  v.  Chicago,  N.  W.  Ry.  Co. 


Craker  vs.  The  Chicago  &  Northwestern  Railway 
Company. 

January  Term,   1875. 
(36  Wis.  657.) 

This  was  an  action  brought  by  a  young  lady,  who  was 
about  twenty  years  of  age,  and  a  school-teacher,  against 
The  Chicago  &  Northwestern  Railway  Company  to  re- 
cover damages  on  account  of  the  insulting  and  abusive 
treatment  accorded  her  by  one  of  the  defendant's  con- 
ductors in  charge  of  a  freight  train,  while  she  was  travel- 
ing as  a  passenger  on  such  train. 

It  appeared  from  the  evidence  that  the  conductor,  who 
had  never  met  plaintiff  prior  to  the  trip  in  question,  forci- 
bly and  against  the  protests  of  the  plaintiff  kissed  her  sev- 
eral times.  For  this  conduct  the  conductor  was  promptly 
discharged  by  the  company.  The  main  ground  of  plaint- 
iff's recovery  was  for  the  "mental  suffering"  on  account  of 
the  sense  of  wrong  and  insult  resulting  from  the  conduc- 
tor's acts.  She  recovered  judgment  for  $1,000. 

Upon  defendant's  appeal,  the  opinion  hereinafter  set 
out  was  rendered  by  the  Chief  Justice. 

The  following  are  the  propositions  of  law  decided : 

A  master  is  liable  for  a  wrong  done  by  his  servant, 
whether  through  negligence  or  the  malice  of  the  latter, 
in  the  course  of  an  employment  in  which  the  serv- 
ant is  engaged  to  perform  a  duty  which  the  master 
owes  to  the  person  injured. 

It  seems  that  the  master  should  be  liable  in  all  cases  for 
the  servant's  wrongful  act  done  in  the  course  of  his 
employment,  whether  through  negligence  or  malice. 


Opinions  of  Chief  Justice  Ryan  384 

A  railroad  company  is  bound  to  protect  female  passen- 
gers on  its  trains  from  all  indecent  approach  or  as- 
sault ;  and  where  a  conductor  on  the  company's  train 
makes  such  an  assault  on  a  female  passenger,  the  com- 
pany is  liable  for  compensatory  damages. 

Exemplary  damages  cannot  be  recovered  against  the 
principal  for  a1  wrongful  and  malicious  act  of  the 
agent,  neither  authorized  nor  ratified  by  the  principal. 

In  actions  for  personal  torts,  the  "compensatory  dam- 
ages" which  may  be  recovered  of  the  principal  for  the 
agent's  act,  include  not  merely  the  plaintiff's  pecuni- 
ary loss,  but  also  compensation  for  mental  suffering. 
An  ambiguous  expression  on  this  subject  in  Railroad 
v.  Finney,  10  Wis.  388,  corrected. 

In  awarding  compensatory  damages  in  such  cases,  no 
distinction  is  to  be  made  between  other  forms  of  men- 
tal suffering  and  that  which  consists  in  "a  sense  of 
wrong  or  insult"  arising  from  an  act  really  or  appar- 
ently "dictated  by  a  spirit  of  willful  injustice  or  by 
a  deliberate  intention  to  vex,  degrade  or  insult."  A 
contrary  intimation  in  Wilson  v.  Young;  31  Wis.  574, 
overruled. 

A  verdict  of  $1,000  damages  for  the  insult  offered  by 
defendant's  conductor  to  the  plaintiff  in  this  case,  held 
not  so  excessive  as  to  authorize  the  court  to  set  it  aside. 

Ryan,  Chief  Justice.  I.  We  cannot  help  thinking  that 
there  has  been  some  useless  subtlety  in  the  books  in  the 
application  of  the  rule  respondeat  superior,  and  some  un- 
necessary confusion  in  the  liability  of  principals  for  will- 
ful and  malicious  acts  of  agents.  This  has  probably  arisen 
from  too  broad  an  application  of  the  dictum  of  Lord  Holt, 
that  "no  master  is  chargeable  with  the  acts  of  his  servant 


385  Craker  v.  Chicago,  N.  W.  Ry.  Co. 

but  when  he  acts  in  the  execution  of  the  authority  given 
to  him,  and  the  act  of  the  servant  is  the  act  of  the  master." 
Middleton  v.  Fowler,  1  Salk.  282.  For  this  would  seem 
to  go  to  excuse  the  master  for  the  negligence  as  well  as  for 
the  malice  of  his  servant.  One  employing  another  in  good 
faith  to  do  his  lawful  work,  would  be  as  little  likely  to 
authorize  negligence  as  malice;  and  either  would  then  be 
equally  dehors  the  employment.  Strictly,  the  act  of  the 
servant  would  not,  in  either  case,  be  the  act  of  the  master. 
It  is  true  that  so  great  an  authority  as  Lord  Kenyon  denies 
this  in  the  leading  case  of  McManus  v.  Crickett,  1  East, 
106,  which  has  been  so  extensively  followed;  and  again,  in 
Ellis  v.  Turner,  8  Term,  531,  distinguishes  between  the 
negligence  and  the  willfulness  of  the  one  act  of  the  agent, 
holding  the  principal  for  the  negligence  but  not  for  the 
willfulness.  It  is  a  similar  comment  on  these  subtleties, 
that  McManus  v.  Crickett  appears  to  rest  on  Middleton  v- 
Fowler,  the  only  adjudged  case  cited  to  support  it ;  and  that 
Middleton  v.  Fowler  was  not  a  case  of  malice,  but  of  negli- 
gence, Lord  Holt  holding  the  master  in  that  case  not  liable 
for  the  negligence  of  his  servant,  in  such  circumstances  as 
no  court  could  now  doubt  the  master's  liability.  In  spite 
of  all  the  learned  subtleties  of  so  many  cases,  the  true  dis- 
tinction ought  to  rest,  it  appears  to  us,  on  the  condition 
whether  or  not  the  act  of  the  servant  be  in  the  course  of  his 
employment,  as  is  virtually  recognized  in  Ellis  v.  Turner. 
But  we  need  not  pursue  the  subject.  For,  however,  that 
may  be  in  general,  there  can  be  no  doubt  of  it  in  those  em- 
ployments in  which  the  agent  performs  a  duty  of  the  prin- 
cipal to  third  persons,  as  between  such  third  persons  and 
the  principal.  Because  the  principal  is  responsible  for  the 
duty,  and  if  he  delegate  it  to  an  agent,  and  the  agent  fail 
to  perform  it,  it  is  immaterial  whether  the  failure  be  acci- 
25 


Opinions  of  Chief  Justice  Ryan.  386 

dental  or  willful,  in  the  negligence  or  in  the  malice  of  the 
agent;  the  contract  of  the  principal  is  equally  broken  in 
the  negligent  disregard,  or  in  the  malicious  violation,  of 
the  duty  by  the  agent.  It  would  be  cheap  and  superficial 
morality  to  allow  one  owing  a  duty  to  another  to  commit 
the  performance  of  his  duty  to  a  third,  without  responsibil- 
ity for  the  malicious  conduct  of  the  substitute  in  perform- 
ance of  the  duty.  If  one  owe  bread  to  another  and  appoint 
an  agent  to  furnish  it,  and  the  agent  of  malice  furnish  a 
stone  instead,  the  principal  is  responsible  for  the  stone  and 
its  consequences.  In  such'  cases,  malice  is  negligence. 
Courts  are  generally  inclining  to  this  view,  and  this  court 
long  since  affirmed  it. 

In  Railroad  Company  v.  Finney,  10  Wis.  388,  Dixon, 
C.  J.,  says:  "It  was  insisted  by  the  counsel  for  the  plaint- 
iffs in  error,  that  in  no  case  could  a  right  of  action  arise 
against  the  principal,  for  the  willful  and  malicous  miscon- 
duct of  the  agent,  unless  it  was  previously  authorized  or 
subsequently  ratified  by  him.  On  careful  examination  of 
this  position,  we  are  satisfied  that  it  is  incorrect.  The  case 
of  Weed  v.  P.  R.  R.  Co.,  17  K  Y.  362,  will  be  found  to 
be  a  clear  and  well  reasoned  case  upon  the  subject.  It  was 
there  held  that  it  was  no  defense  to  an  action  against  a  rail- 
road corporation,  for  its  failure  to  transport  a  passenger 
with  proper  dispatch,  that  the  delay  was  the  willful  act  of 
the  conductor  in  charge  of  the  train.  The  rule  established 
by  that  case,  as  we  think  with  much  reason,  is,  that  where 
the  misconduct  of  the  agent  causes  a  breach  of  the  obliga- 
tion or  contract  of  the  principal,  there  the  principal  will  be 
liable  in  an  action,  whether  such  misconduct  be  willful  or 
malicious,  or  merely  negligent.  The  action,  though  unde- 
niably in  tort,  is  treated  virtually  as  an  action  ex  contractu, 
and  governed  by  the  same  rule  of  damages,  unless  the  mal- 


387  Craker  v.  Chicago,  N.  W.  R?.  Co. 

ice  or  wantonness  of  the  agent  is  brought  home  and  directly 
charged  to  the  principal.  In  this  case,  the  contract  be- 
tween the  plaintiff  and  defendant  was,  that  in  consider- 
ation of  his  having  paid  to  them  the  fee  demanded,  they 
were  -carefully  to  transport  him  in  their  cars  from  Madi- 
son to  Edgerton.  It  is  no  defense  for  their  breach  of  this 
contract,  that  it  was  occasioned  by  the  willful  act  of  their 
agent.  The  corporation  was  incapable  of  executing  it,  ex- 
cept through  the  medium  of  its  agents.  If  in  doing  so 
they  violate  it,  no  matter  from  what  motive,  their  acts  are 
the  acts  of  their  principals,  who  hold  them  out  to  the  world 
as  capable  and  faithful  in  the  discharge  of  their  duties. 
In  no  other  way  could  the  company  be  held  to  a  perform- 
ance of  its  contracts."  This  was,  perhaps,  obiter  in  that 
case;  but,  with  a  single  qualification,  presently  made  and 
not  material  in  this  connection,  we  fully  reaffirm  it  in  this 
case. 

In  Bass  v.  Railway  Co.,  36  Wis.  463,  speaking  of  rail- 
road officers  in  charge  of  passenger  trains,  we  said :  "They 
act  on  the  peril  of  the  corporation,  and  their  own.  Indeed, 
as  that  fictitious  entity,  the  corporation,  can  act  only 
through  natural  persons,  its  officers  and  servants,  and  as  it, 
of  necessity,  commits  its  trains  absolutely  to  the  charge  of 
officers  of  its  own  appointment,  and  passengers  of  necessity 
commit  to  them  their  safety  and  comfort  in  transitu,  under 
conditions  of  such  peril  and  subordination,  we  are  dis- 
posed to  hold  that  the  whole  power  and  authority  of  the  cor- 
poration, pro  liac  vice,  is  vested  in  these  officers ;  and  that, 
as  to  passengers  on  board,  they  are  to  be  considered  as  the 
corporation  itself;  and  that  the  consequent  authority  and 
responsibility  are  not  generally  to  be  straitened  or  impaired 
by  any  arrangement  between  the  corporation  and  the  offi- 
cers, the  corporation  being  responsible  for  the  .acts  of  the 


Opinions  of  Chief  Justice  Ryan. 

officers  in  the  conduct  and  government  of  the  train,  to  the 
passengers  traveling  by  it,  as  the  officers  would  be  for  them- 
selves, if  they  were  themselves  the  owners  of  the  road  and 
train.  We  consider  this  rule  essential  to  public  conveni- 
ence and  safety,  and  sanctioned  by  great  weight  of  author- 
ity." We  have  carefully  reconsidered  all  that  was  said 
in  Bass  v.  Railway  Co.,  and  reaffirm  the  doctrine  of  that 
case.  And  what  it  was  there  said,  in  the  passage  cited, 
we  were  disposed  to  hold,  we  now  hold,  with  a  single  quali- 
fication which  we  will  presently  make  and  need  not  notice 
here. 

So  far  as  they  relate  to  the  duties  of  railroad  companies 
to  their  passengers,  and  their  responsibility  for  the  officers 
of  their  trains,  Railroad  Co.  v.  Finney  and  Bass  v.  Rail- 
way Co.  are  in  perfect  accord,  though  the  latter  case  car- 
ries the  principle  more  into  detail;  but  both  rest  on  the 
same  principle. 

In  Bass  v.  Railway  Co.,  we  had  occasion  also  to  consider 
somewhat  the  nature  of  the  obligations  of  railroad  com- 
panies to  their  passengers  under  the  contract  of  carriage; 
the  "careful  transportation"  of  Railroad  Co.  v.  Finney. 
On  the  authority  of  such  jurists  as  Story,  J.,  and  Shaw, 
C.  J".,  we  likened  them  to  those  of  innkeepers.  And,  speak- 
ing of  female  passengers,  we  said:  "To  such,  the  protec- 
tion which  is  the  natural  instinct  of  manhood  towards  their 
sex,  is  especially  due  by  common  carriers."  In  Day  v. 
Owen,  5  Mich.  520,  the  duties  of  common  carriers  are  said 
to  "include  everything  calculated  to  render  the  transporta- 
tion most  comfortable  and  least  annoying  to  passengers." 
In  Nieto  v.  Clark,  1  Clifford,  145,  the  court  says :  "In  re- 
spect to  female  passengers,  the  contract  proceeds  yet  fur- 
ther, and  includes  an  implied  stipulation  that  they  shall 
be  protected  against  obscene  conduct,  lascivious  behavior, 


389  Craker  v.  Chicago,  N.  W.  Ry.  Co. 

and  every  immodest  and  libidinous  approach."  Long  be- 
fore, Story,  J.,  had  used  this  comprehensive  and  beautiful 
language,  worthy  of  him  as  a  jurist  and  gentleman,  in 
Chamberlain  v.  Chandler,  3  Mason,  242 :  "It  is  a  stipula- 
tion, not  for  toleration  merely,  but  for  respectful  treatment, 
for  that  decency  of  demeanor  which  constitutes  the  charm 
of  social  life,  for  that  attention  which  mitigates  evils  with- 
out reluctance,  and  that  promptitude  which  administers 
aid  to  distress.  In  respect  to  females,  it  proceeds  yet  fur- 
ther; it  includes  an  implied  stipulation  against  general 
obscenity,  that  immodesty  of  approach  which  borders  on 
lasciviousness,  and  against  that  wanton  disregard  of  the 
feelings  which  aggravates  every  evil."  These  things  were 
said,  indeed,  of  passage  by  water,  but  they  apply  equally  to 
passage  by  railroad.  Commonwealth  v.  Power,  7  Met. 
596. 

These  were  among  the  duties  of  the  appellant  to  the 
respondent,  when  she  went  as  a  passenger  on  its  train: 
duties  which  concern  public  welfare.  These  were  among 
the  duties  which  the  appellant  appointed  the  conductor  to 
perform  for  it,  to  the  respondent.  If  another  person,  of- 
ficer or  passenger  or  stranger,  had  attempted  the  indecent 
assault  which  the  conductor  made  upon  the  respondent, 
it  would  have  been  the  duty  of  the  appellant,  and  of  the 
conductor  for  the  appellant,  to  protect  her.  If  a  person, 
known  by  his  evil  habits  and  character  as  likely  to  attempt 
such  an  assault  upon  the  respondent,  had  been  upon  the 
train,  it  would  have  been  the  duty  of  the  appellant,  and  of 
the  conductor  for  the  appellant,  to  the  respondent,  to  pro- 
tect her  against  the  likelihood.  Stephen  v.  Smith,  29  Vt. 
160;  Railroad  Co.  v.  Hinds,  53  Pa.  St.  512;  Common- 
wealth v.  Power,  supra;  Xieto  v.  Clark,  supra;  and  other 
cases  cited  in  Bass  v.  Railway  Co.  We  do  not  understand 


Opinions  of  Chief  Justice  Ryan.  390 

it  to  be  denied  that  if  such  an  assault  on  the  respondent  had 
been  attempted  by  a  stranger,  and  the  conductor  had  neg- 
lected to  protect  her,  the  appellant  would  have  been  liable. 
But  it  is  denied  that  the  act  of  the  conductor  in  maliciously 
doing  himself  what  it  was  his  duty,  for  the  appellant  to  the 
respondent,  to  prevent  others -from  doing,  makes  the  appel- 
lant liable.  It  is  contended  that,  though  the  principal 
would  be  liable  for  the  negligent  failure  of  the  agent  to 
fulfill  the  principal's  contract,  the  principal  is  not  liable 
for  the  malicious  breach  by  the  agent,  of  the  contract  which 
he  was  appointed  to  perform  for  the  principal:  as  we  un- 
derstand it,  that  if  one  hire  out  his  dog  to  guard  sheep 
against  wolves,  and  the  dog  sleep  while  a  wolf  makes  away 
with  a  sheep,  the  owner  is  liable ;  but  if  the  dog  play  wolf 
and  devour  the  sheep  himself,  the  owner  is  not  liable. 
The  bare  statement  of  the  proposition  seems  a  reductio  ad 
dbsurdum.  The  radical  difficulty  in  the  argument  is,  that 
it  limits  the  contract.  The  carrier's  contract  is  to  protect 
the  passenger  against  the  world;  the  appellant's  construc- 
tion is,  that  it  was  to  protect  the  respondent  against  all  the 
world  except  the  conductor,  whom  it  appointed  to  protect 
her :  reserving  to  the  shepherd's  dog  a  right  to  worry  the 
sheep.  ~No  subtleties  in  the  books  could  lead  us  to  sanc- 
tion so  vicious  an  absurdity. 

The  contract  of  carriage  was  very  surely  the  contract 
of  appellant,  not  of  the  agent  who  sold  the  ticket.  It 
rested  with  the  appellant  to  perform  it  by  agents  of  its  own 
choice,  on  its  own  responsibility.  It  chose  the  officers  of 
the  train,  with  the  conductor  at  their  head,  to  perform  its 
contract  for  it.  Where  was  the  corporation  and  by  whom 
was  it  represented,  as  to  this  contract  and  this  passenger  ? 
]STot  surely  in  some  foreign  board  room,  by  directors  mak- 
ing regulations  and  appointing  agencies  for  the  corporate 


391  Craker  v.  Chicago,  N.  W.  Ry.  Co. 


business.  They  could  not  perform  this  contract. 
surely  in  some  distant  office,  by  a  superintendent  or  man- 
ager issuing  the  orders  of  the  directors  to  his  subordinates. 
He  could  not  perform  this  contract.  Quoad  this  contract 
and  the  passenger,  the  corporation  was  present  on  this  train 
to  keep  it  and  to  care  for  her,  represented  by  the  officers  of 
the  train,  who  possessed,  pro  hac  vice,  the  whole  power  and 
authority,  and  were  the  living  embodiment  of  the  ideal  en- 
tity which  made  the  contract,  was  bound  to  keep  it,  and  is 
appellant  here  to  contend  that  it  has  no  responsibility  for 
the  flagrant  violation  of  the  contract,  which  the  respondent 
paid  it  to  make  and  to  keep,  by  its  sole  present  representa- 
tive appointed  to  keep  it  on  its  behalf.  Like  the  English 
Crown,  it  lays  its  sins  upon  its  servants,  and  claims  that  it 
can  do  no  wrong.  "We  cannot  bend  down  the  law  to  such  a 
convenience.  The  appellant  tortiously  broke  this  contract 
as  surely  as  it  made  it  :  committed  this  tort  as  surely  as  it 
made  the  contract. 

We  are  unwilling  to  waste  time  or  patience  in  discussing 
the  conductor's  violation  of  the  appellant's  contract  with 
the  respondent.  Every  woman  has  a  right  to  assume  that 
a  passenger  car  is  not  a  brothel  ;  and  that  when  she  travels 
in  it,  she  will  meet  nothing,  see  nothing,  hear  nothing,  to 
wound  her  delicacy  or  insult  her  womanhood.  It  is  enough 
to  say  that  the  appellant's  contract  of  careful  carriage  with 
the  respondent  was  not  kept,  was  tortiously  violated  by  the 
officer  appointed  by  the  appellant  to  keep  it. 

And  so  the  appellant  seems  at  the  time  to  have  regarded 
it  It  is  very  certain  that  it  had  a  right  to  dismiss  the 
conductor,  as  it  did  promptly  and  most  properly,  rescind- 
ing his  contract  of  employment  for  violation  of  his  duty. 
For  that  person  violated  his  contract  with  the  appellant, 
by  violating  the  appellant's  contract  with  the  respondent. 


Opinions  of  Chief  Justice  Ryan.  392 

He  sinned  in  the  course  of  his  employment,  against  the  ap- 
pellant and  the  respondent  alike :  in  one  and  the  same  act 
broke  his  own  contract  with  the  appellant,  and  the  appel- 
lant's with  the  respondent. 

We  cannot  think  that  there  is  a  question  of  the  respond- 
ent's right  to  recover  against  the  appellant,  for  a  tort  which 
was  a  breach  of  the  contract  of  carriage.  We  might  well 
rest  our  decision  on  principle.  But  we  also  think  that  it 
is  abundantly  sanctioned  by  authority.  Railroad  Co.  v. 
Finney,  Bass  v.  Railway  Co.,  Weed  v.  Railroad  Co.,  Kieto 
v.  Clark,  Railroad  Co.  v.  Hinds,  and  Railroad  v.  Rogers, 
supra;  Railroad  Co.  v.  Derby,  14  How.  468 ;  Moore  v.  Rail- 
road Co.,  4  Gray,  465;  Ramsden  v.  Railroad  Co.,  104 
Mass.  117 ;  Maroney  v.  Railroad  Co.,  106  id.  153 ;  Cole- 
man  v.  Railroad  Co.,  id.  160 ;  Bryant  v.  Rich,  id.  180 ;  Rail- 
road Co.  v.  Vandiver,  42  Pa.  St.  365 ;  Railroad  Co.  v.  An- 
thony, 43  Ind.  183;  Railroad  Co.  v.  Blocher,  27  Md.  277; 
Railroad  Co.  v.  Young,  21  Ohio  St.  518 ;  Sherley  v.  Bil- 
lings, 8  Bush,  147 ;  Seymour  v.  Greenwood,  6  Hurl.  &  !N". 
359 ;  Bayley  v.  Railroad  Co.,  L.  R.,  7  C.  P.  415.  There 
are  cases,  even  of  recent  date,  which  hold  the  other  way. 
But  we  think  that  the  great  weight  of  authority  and  the 
tendency  of  decision  sanction  our  position. 

II.  It  was  not  necessary  to  the  decision  of  Bass  v.  Rail- 
way Co.,  and  we  were  not  then  quite  prepared,  to  pass  upon 
the  rule  of  damages  in  such  cases  as  that  and  this.  We  were 
then  aware  of  some  apparent  discrepancy  between  things 
said  in  that  case  and  in  Railroad  Co.  v.  Finney,  and  pur- 
posely omitted  all  allusion  to  the  latter  case.  In  this  case, 
as  in  Bass  v.  Railway  Co.,  the  rule  of  damages  has  been 
fully  and  well  discussed,  and  is  more  or  less  involved  in  the 
decision  of  this  case.  We  have  again  considered  it,  and 


393  Craker  v.  Chicago,  N.  W.  Ry.  Co. 

are  now  prepared  to  state  our  views  of  the  rule  in  such 
cases. 

It  is  said  in  Railroad  Co.  v.  Finney,  that  the  plaintiff  in 
such  a  case  is  not  entitled  to  exemplary  damages  against  the 
principal,  for  the  malicious  act  of  the  agent,  without  proof 
that  the  principal  expressly  authorized  or  confirmed  it. 
Without  now  discussing  what  would  or  would  not  be  com- 
petent or  sufficient  evidence  of  such  authority  or  confirma- 
tion, we  may  say  that  we  have,  on  very  mature  considera- 
tion, concluded  that  the  rule  in  Railroad  Co.  v.  Finney  is 
the  better  and  safer  rule.  We  are  aware  that  there  is  au- 
thority, and  perhaps  the  greater  weight  of  authority,  for 
exemplary  damages  in  such  cases,  without  privity  of  the 
principal  to  the  malice  of  the  agent;  and  that  reasons  of 
public  policy  are  strongly  urged  in  support  of  such  a  rule. 
Goddard  v.  Railroad  Co.,  57  Me.  202 ;  Sanford  v.  Railroad 
Co.,  23  K  Y.  343 ;  Railroad  Co.  v.  Rogers,  38  Ind.  116, 
and  other  cases.  But  we  adhere  to  what  is  said  on  that 
point  in  Railroad  Co.  v.  Finney.  We  think  that  in  justice 
there  ought  to  be  a  difference  in  the  rule  of  damages  against 
principals  for  torts  actually  committed  by  agents,  in  cases 
where  the  principal  is,  and  in  cases  where  the  princi- 
pal is  not,  a  party  to  the  malice  of  the  agent.  In  the 
former  class  of  cases,  the  damages  go  upon  the  malice  of 
the  principal :  malice  common  to  principal  and  agent.  In 
the  latter  class  of  cases,  the  recovery  is  for  the  act  of  the 
principal  through  the  agent,  in  malice  of  the  agent  not 
shared  by  the  principal;  the  principal  being  responsible 
for  the  act,  but  not  for  the  motive  of  the  agent.  In  the 
former  class,  the  malice  of  the  agent  is  actual ;  in  the  latter, 
it  must  at  most  be  constructive.  And  we  are  inclined  to 
think  that  the  justice  of  the  rule  accords  with  public  policy. 


Opinions  of  Chief  Justice  Ryan.  394 

Responsibility  for  the  compensatory  damages  will  be  a  suf- 
ficient admonition  to  carrier  corporations  to  select  com- 
petent and  trustworthy  officers.  And  responsibility  for 
exemplary  damages,  in  cases  of  ratification,  will  be  an  ad- 
monition to  prompt  dismissal  of  offending  officers,  as  their 
retention  might  well  be  held  evidence  of  ratification.  The 
interest  of  these  corporations  and  of  the  public,  in  such 
matters,  should  be  made  alike  as  far  as  possible.  And  we 
hold  the  rule,  as  we  have  stated  it,  the  justest  and  safest  for 
both. 

It  was  also  said  in  Railroad  Co.  v.  Finney,  that  the  ac- 
tion is  in  tort ;  but  that,  in  cases  not  calling  for  exemplary 
damages,  the  rule  of  damages  should  be  as  in  actions  ex 
coniractu,  the  actual  loss  sustained  by  reason  of  the  mis- 
conduct of  the  conductor. 

This  was  said  arguendo,  without  attempt  at  close  connec- 
tion or  exact  statement;  and  it  is  not  altogether  easy  to 
ascertain  its  precise  meaning.  If  it  mean,  as  it  may,  that 
in  such  cases  the  recovery  against  the  principal  for  the 
tort  committed  by  the  agent  is  limited  to  the  mere  pecuni- 
ary loss,  we  cannot  sanction  it.  Such  a  rule  would  be  in 
conflict  with  all  known  rules  of  damages  in  actions  of  tort 
for  personal  wrongs ;  and  would  be  almost  equivalent  to  a 
license  to  officers  of  railroad  trains  and  steamboats  to  in- 
sult and  outrage  passengers  committed  to  their  care  for 
courtesy  and  protection:  mischievous  alike  to  the  com- 
panies and  the  public.  But  if  it  mean,  as  it  may  and 
probably  was  intended,  compensatory  damages  as  in  like 
actions  for  other  personal  torts,  we  affirm  and  adopt  it  as 
the  rule  of  the  court.  We  see  no  reason  for  distinguish- 
ing such  actions  from  others  of  like  character,  in  the  rule 
of  damages. 

In  Wilson  v.  Young,  31  Wis.  5T4,  Lyon,  J.,  inadvert- 


395  Craker  v.  Chicago,  N.  W.  Ry.  Cb, 

ently  fell  into  some  subtleties  found  in  Mr.  Sedgwick's  ex- 
cellent work,  which  appear  to  us  all  now  to  confuse  com- 
pensatory and  exemplary  damages.  The  distinction  was 
not  in  that  case,  and  the  passage  in  Sedgwick  was  cited 
and  approved,  as  such  high  authorities  often  are,  without 
sufficient  consideration.  We  all  now  concur  in  disapprov- 
ing the  distinction. 

In  giving  the  elements  of  damages,  Mr.  Sedgwick  dis- 
tinguishes between  "the  mental  suffering  produced  by  the 
act  or  omission  in  question :  vexation :  anxiety :"  which  he 
holds  to  be  ground  for  compensatory  damages:  and  the 
"sense  of  wrong  or  insult,  in  the  sufferer's  brea'st,  from  an 
act  dictated  by  a  spirit  of  willful  injustice,  or  by  a  deliber- 
ate intention  to  vex,  degrade  or  insult,"  which  he  holds 
to  be  grounds  for  exemplary  damages  only.  Sedgwick's 
Meas.  Dam.  35. 

Mr.  Sedgwick  himself  says  that  the  rule  in  favor  of  ex- 
emplary damages  "blends  together  with  the  interests  of 
society  and  the  aggrieved  individual,  and  gives  damages 
not  only  to  recompense  the  sufferer,  but  to  punish  the  of- 
fender" (ib.  38).;  and,  following  him,  this  court  held  in 
the  leading  case  of  McWilliams  v.  Bragg,  3  Wis.  424,  and 
has  often  since  reaffirmed,  that  exemplary  damages  are  "in 
addition  to  actual  damages." 

In  actions  of  tort,  as  a  rule,  when  the  plaintiff's  right 
to  recover  is  established,  he  is  entitled  to  full  compensatory 
damages.  When  proper  ground  is  established  for  it,  he  is 
also  entitled  to  exemplary  damages,  in  addition.  The 
former  are  for  the  compensation  of  the  plaintiff ;  the  latter, 
for  the  punishment  of  the  defendant  and  for  example  to 
others.  This  is  Sedgwick's  blending  together  of  the  in- 
terest of  society  and  the  interest  of  plaintiff.  And  it  is 
plain  that  there  cannot  well  be  common  ground  for  the  two.. 


Opinions  of  Chief  Justice  Ryan.  396 

The  injury  to  the  plaintiff  is  the  same,  and  for  that  he  is 
entitled  to  full  compensation,  malice  or  no  malice.  If 
malice  be  established,  then  the  interest  of  society  comes  in, 
to  punish  the  defendant  and  deter  others  in  like  cases,  by 
adding  exemplary  to  compensatory  damages. 

We  need  add  no  authority  to  Mr.  Sedgwick's  that,  in 
actions  for  personal  tort,  mental  suffering,  vexation  and 
anxiety  are  subject  of  compensation  in  damages.  And  it 
is  difficult  to  see  how  these  are  to  be  distinguished  from 
the  sense  of  wrong  and  insult  arising  from  injustice  and 
intention  to  vex  and  degrade.  The  appearance  of  malici- 
ous intent  may  indeed  add  to  the  sense  of  wrong;  and 
equally,  whether  such  intent  be  really  there  or  not.  But 
that  goes  to  mental  suffering,  and  mental  suffering  to  com- 
pensation. So  it  seems  to  us.  But  if  there  be  a  subtle, 
metaphysical  distinction  which  we  cannot  see,  what  hu- 
man creature  can  penetrate  the  mysteries  of  his  own  sensa- 
tions, and  parcel  out  separately  his  mental  sufferings  and 
his  sense  of  wrong — so  much  for  compensatory,  and  so 
much  for  vindictive  damages  ?  And  if  one  .cannot  scrut- 
inize the  anatomy  of  his  own,  how  impossible  to  dissect 
the  mental  agonies  of  another,  as  a  surgeon  does  corporal 
muscles.  If  possible,  juries  are  surely  not  metaphysicians 
to  do  it.  And  we  must  hold  that  all  mental  suffering  di- 
rectly consequent  upon  tort,  irrespectively  of  all  such  in- 
scrutable distinctions,  is  ground  for  compensatory  damages 
in  action  for  the  tort. 

With  these  views,  we  can  see  no  error  in  the  charge  of 
the  court  below  on  the  subject  of  damages. 

III.  The  respondent  appears  to  be  of  respectable  rank  in 
life,  and  of  sufficient  culture  to  qualify  her  for  teaching 
in  public  schools.  In  the  painful  trial  of  character  and 
.temper  of  the  scene  which  culminated  in  the  assault,  in 


397  Note  to  Craker  v.  Chicago,  N.  W.  Ry.  Co. 

her  action  and  demeanor  following  upon  it,  in  the  inter- 
view intruded  upon  her  by  the  appellant,  and  in  the  em- 
barrassment of  her  examination  on  the  trial,  she  appears 
to  have  acted  with  great  propriety,  free  from  all  exaggera- 
tion and  affectation.  She  appears  in  the  record  to  be  a  per- 
son who  would  feel  such  a  wrong  keenly.  She  was  en- 
titled to  liberal  damages  for  her  terror  and  anxiety,  her 
outraged  feeling  and  insulted  virtue,  for  all  her  mental 
humiliation  and  suffering.  We  cannot  say  that  the  dam- 
ages are  excessive.  "We  might  have  been  better  satisfied 
with  a  verdict  for  less.  But  it  is  not  for  us,  it  was  for  the 
jury,  to  fix  the  amount  And  they  are  not  so  large  that 
we  can  say  that  they  are  unreasonable.  Who  can  be  found 
to  say  that  such  an  amount  would  be  in  excess  of  compensa- 
tion to  his  own  or  his  neighbor's  wife  or  sister  or  daughter  ? 
Hewlett  v.  Cruchley,  5  Taunt.  277.  We  cannot  say  that 
it  is  to  the  respondent. 

By  the  Court. — The  judgment  of  the  court  below  is  af- 
firmed. 

NOTE. 

(Each  case  in  this  note  after  which  is  placed  the  figure 
(J)  relates  to  the  subject  discussed  in  the  foregoing  opin- 
ion numbered  I;  those  numbered  (2)  relate  to  the  subject 
in  the  opinion  numbered  II;  etc.) 

The  opinion  in  the  Craker  case,  supra,  is  one  of  the 
most  widely  cited  opinions  to  be  found  on  the  subject  of 
compensatory  damages  for  mental  suffering.  It  has  been 
cited  with  approval  in  Wisconsin  as  follows :  Hinckley  v. 
C.  M.  &  St.  P.  Ry.,2  38  Wis.  197 ;  Brabbits  v.  C.  &  K. 
W.  Ry.,1  38  Wis.  299 ;  Bass  v.  C.  &  E".  W.  Ry.,2  39  Wis. 
641;  State  ex  rel.  Continental  Ins.  Co.  v.  Doyle,1  40 
Wis.  233,  234;  Walsh  v.  C.,  M.  &  St.  P.  Ry.,1  42  Wis.  29 ; 
Winn  v.  Peckham,2  42  Wis.  501 ;  Smith  v.  C.,  M.  &  St  P. 
Ry.,1  42  Wis.  526;  Bass  v.  C.  &  N.  W.  Ry.,1'  2  42  Wis. 
666,  667,  672,  674,  675,  676,  678;  Brown  v.  Swineford,1 


Opinions  of  Chief  Justice  Ryan.  398 

44  Wis.  286,  288,  289 ;  Bessex  v.  C.  &  K  W.  Ey.,1  45  Wis. 
483  ;  Sorenson  v.  Dundas,1  50  Wis.  338  ;  Fenelon  v.  Butts,1 
53  Wis.  352 ;  Brown  &  wife  v.  C.,  M.  &  St.  P.  Ey.,1  54 
Wis.  348 ;  Eviston  v.  Kramer,2  57  Wis.  578 ;  Lawson  v. 
C.,  St.  P.  M.  &  O.  Ey.,1  64  Wis.  456;  Schaefer  v.  Oster- 
'brink,1  67  Wis.  499 ;  Grace  v.  Dempsey,1'  2  75  Wis.  323 ; 
Duffies  v.  Duffies,1'  2  76  Wis.  386,  8  L.  E.  A.  425,  20  Am. 
St.  Eep.  88  and  note  collecting  authorities;  Putry  v.  C., 
St.  P.  M.  &  O.  Ey.,2  77  Wis.  227 ;  Summerfield  v.  West- 
ern U.  Tel.  Co.,1  87  Wis.  12,  13 ;  Eeinke  v.  Bentley,1-  2  90 
Wis.  459 ;  Eobinson  v.  Superior  E.  T.  Ey.,  l>  2  94  Wis. 
348,  34  L.  E.  A.  206,  207 ;  Bryan  v.  Adler,1  97  Wis.  127, 
41  L.  E.  A.  665;  Vassau  v.  Madison  Electric  Co.,2  106 
Wis.  306,  307 ;  Bergman  v.  Hendrickson,1  106  Wis.  437, 
438;  Gaertner  v.  Blues,2  109  Wis.  171 ;  Eueping  v.  C.  & 
N".  W.  Ey.,1  116  Wis.  630 ;  Cobb  v.  Simon,1  119  Wis. 
604;  Koerber  v.  Patek,1-  2  123  Wis.  465,  68  L.  E.  A.  961. 
In  Lienkauf  &  Strauss  v.  Morris,  66  Ala.  45,  Craker  v. 
Ey.,  supra,  was  cited,  but  not  with  entire  approval.  It 
has,  however,  been  cited  with  approval  outside  of  the  Wis- 
consin Supreme  Court  as  follows :  Birmingham  Ey.  &  El. 
Co.  v.  Baird,1  130  Ala.  348,  54  Am.  St.  Eep.  754;  Mc- 
Murray  v.  Basnett,1  18  Fla.  626 ;  S.  F.  &  W.  Ey.  v.  Lulu 
Quo,2  103  Ga.  127,  40  L.  E.  A.  484;  C.  &  E.  Ey.  v.  Flex- 
man,1  103  111.  551,  8  L.  E.  A.  358 ;  C.,  E.  I.  &  P.  Ey.  v. 
Barrett,1  16  Brad.  (111.)  23,  24;  Am.  Ex.  Co.  v.  Patter- 
son,1 73  Ind.  435 ;  L.  E.  &  W.  Ey.  v.  Fix,1-  2  88  Ind.  388, 
11  A™.  &  Eng.  Ey.  Cas.  314;  Smith  v.  L.  E.  &  St.  L. 
Ey.,1  124  Ind.  400;  Dixon  v.  Waldron,1  135  Ind.  531, 
41  Am.  St.  Eep.  450,  24  L.  E.  A.  487 ;  McKinley  v.  C. 
&  K  W.  Ey.,1  44  la.  318,  322,  24  Am.  St.  Eep.  750,  753 ; 
Mentzer  v.  W.  U.  Tel.  Co.,2  93  la.  764,  28  L.  R  A.  76; 
Kan.  Lumber  Co.  Jr.  v.  Central  Bank,1  34  Kan.  639 ;  L.  & 
N".  Ey.  v.  Ballard,1  85  Ky.  311 ;  Eichberger  v.  Am.  Express 
Co.,1  73  Miss.  169,  31  L.  E.  A.  391 ;  Spohn  v.  M.  P.  Ey.,1 
87  Mo.  81  and  note  collecting  authorities  in  26  Am.  &  Eng. 
Ey.  Cas.  256;  Sira  v.  Wabash  Ey.,1  115  Mo.  136,  37  Am. 
St.  Eep.  390,  20  L.  E.  A.  176;  Farber  v.  M.  P.  Ey.,1  116 
Mo.  91,  20  L.  E.  A.  353,  354;  Cornell  v.  W.  U.  Tel.  Co.,2 


399  Note  to  Craker  v.  Chicago,  N.  W.  Ry.  Co. 

116  Mo.  43,  20  L.  E.  A.  176 ;  McNamara  v.  St.  L.  T.  Co.,2 
182  Mo.  686,  66  Am.  St.  Eep.  490;  Randolph  v.  H.  & 
St.  J.  By.,1  18  Mo.  App.  616,  618 ;  McGuiniss  v.  M.  P. 
Rj.,1  21  Mo.  App.  408 ;  Rouse  v.  Metropolitan  Street  Ry. 
Co.,1  41  Mo.  App.  309 ;  Jones  v.  St.  Louis  N.  &  P.  L.  Co.,1 
43  Mo.  App.  409 ;  Eads  v.  Metropolitan  St.  Ry.  Co.,1  43 
Mo.  App.  545 ;  Hainan  v.  Omaha  Horse  Car  Co.,2  35 
Neb.  80 ;  Young  v.  Tel.  Co.,1  107  K  C.  384,  22  Am.  St. 
Rep.  894,  9  L.  R.  A.  674;  Purcell  v.  Ry.,1  108  N.  C.  422 ; 
Hood  v.  Sudderth,1  111  N.  C.  222 ;  Daniel  v.  Petersburg 
R.  Co.,  117  K  C.  592,  4  L.  R.  A.  (N.  S.)  499 ;  Stewart  v. 
Brooklyn  &  C.  Ry.,1  90  K  Y.  593,  12  Am.  &  Eng.  Ry. 
Cas.  131 ;  Dwindle  v.  N.  Y.  C.  &  H.  R.  Ry.,1  120  K  Y.  126, 
17  Am.  St.  Rep.  617,  8  L.  R.  A.  227 ;  Krugg  v.  Pitass,3 
162  N.  Y.  162;  Gillespie  v.  B.  H.  Ry.,1  178  N.  Y.  357, 
361,  66  L.  R.  A.  622,  624;  Clifford  v.  Press  Publishing 
Co.,1  78  App.  D.  (N.  Y.)  81,  86;  Smith  v.  Manhattan 
Ry.,1  18  N.  Y.  Supp.  759 ;  Nelson  B.  C.  v.  Lloyd,1  60  Oh. 
St.  448,  46  Am.  St.  Rep.  315 ;  Lakin  v.  O.  P.  Ry.,1  150 
Ore.  233 ;  Dillingham  v.  Russell,1  73  Tex.  52,  15  Am.  St. 
Rep.  758,  3  L.  R.  A.  637 ;  Stuart  v.  Western  Union  Tel. 
Co.,2  66  Tex.  585 ;  T.  &  P.  Ry.  v.  Woodall,1  2  Tex.  Ct. 
App.  420 ;  Knoxville  Traction  Co.  v.  Lane,2  103  Tenn. 
383,  46  Am.  St.  Rep.  551;  Cunningham  v.  Seattle  El. 
Co.,2  3  Wash.  475 ;  Gillingham  v.  O.  R.  Ry.,1  35  W.  Va. 
597,  29  Am.  St.  Rep.  835,  14  L.  R.  A.  802 ;  State  of  Mo.,1 
76  Fed.  379 ;  Clancy  v.  Barker,1  131  Fed.  167,  69  L.  R. 
A.  657,  661 ;  N.  O.  &  K  E.  Ry.  v.  Jopes,1  142  U.  S.  27. 

It  has  been  cited  in  notes,  many  of  them  collecting  the 
authorities,  to  the  following  cases  reported  in  Am.  Dec., 
Am.  Rep.,  Am.  St.  Rep.,  L.  R.  A.  and  Am.  &  Eng.  Ry. 
Cas.: 

Lawyers'  Reports  Annotated:  Quinn  v.  S.  Car.  Ry.  (29 
S.  C.  381),  1  L.  R.  A.  682;  R.  &  D.  Ry.  v.  Allison  (86 
Ga.  145),  11  L.  R.  A.  45;  Lafitte  v.  E".  O.  C.  &  L.  Co. 
(43  La.  Ann.  34),  12  L.  R.  A.  338;  Spaulding,  Adm.  of 
Baker  v.  Pa.  Co.  (142  Pa.  St.  503),  12  L.  R.  A.  699; 
Davis  v.  Houghtelin  (33  Neb.  582),  14  L.  R.  A.  738, 
note  to  Hagan's  Petition,  5  Dill.  103. 


Opinions  of  Chief  Justice  Ryan.  400 

American  State  Reports:  Central  Ry.  v.  Smith  (76  Ga. 
209),  2  Am.  St.  Rep.  40;  West  v.  W.  U.  Tel.  Co.  (39 
Kan.  93),  7  Am.  St.  Rep.  535. 

American  and  English  Railway  Cases:  Obrien  v.  1ST. 
T.  C.  &  H.  R.  Ry.  (180  K  Y.  236),  1  Am.  &  Eng.  Ry. 
Cas.  273;  Galveston,  etc.,  Ry.  v.  Dunleary  (55  Tex.  256), 
11  Am.  &  Eng.  Ry.  Cas.  679 ;  L.  &  N".  v.  Kelley  (92  Ind. 
371),  13  Am.  &  Eng.  Ry.  Cas.  4;  I.  &  G.  K  Ry.  v.  Irvine 
(64  Tex.  529),  18  Am.  &  Eng.  Ry.  Gas.  297;  Heenricli  v. 
Pullman,  etc.,  Co.  (20  Fed.  100),' 18  Am.  &  Eng.  Ry.  Cas. 
382;  Sullivan  v.  Ore.  Ry.  &  Nav.  Co.  (12  Ore.  392),  21 
Am.  &  Eng.  Ry.  Cas.  404;  Tick  v.  C.  &  K  W.  Ry.  (68 
Wis.  469),  34  Am.  &  Eng.  Ry.  Cas.  382. 

American  Decisions:  Merrills  v.  Tariff  Man.  Co.  (10 
Conn.  384),  27  Am.  Dec.  685;  Ware  v.  B.  &  L.  Canal  Co. 
(15  la.  169),  35  Am.  Dec.  201;  Austin  v.  Wilson  (4 
Gushing,  273),  50  Am.  Dec.  773 ;  Moore  v.  Fitchburg  Ry. 
Corp.  (4  Gray,  465),  64  Am.  Dec.  86;  Hagan  v.  Provi- 
dence, etc.,  Ry.  Co.  (3  R.  I.  88),  62  Am.  Dec.  385,  387; 
Pa.  Ry.  v.  Vandiver  (42  Pa.  St.  365),  82  Am.  Dec.  526. 

American  Reporter:  ~N.  &  E.  G.  R.  Co.  v.  Gause  (76 
Ind.  142),  40  Am.  Rep.  227;  Hoffman  v.  K  Y.  C.  &  H. 
R.  Ry.  (87  K  Y.  25),  41  Am.  Rep.  341 ;  P.  W.  &  B.  Ry. 
v.  Larkin  (47  Md.  155),  28  Am.  Rep.  442;  K  &  C.  Ry. 
v.  Starnes  (9  Heisk.  52),  24  Am.  Rep.  299.' 


401  Sawyer  v.  Insurance  Co. 


Sawyer  vs.  The  Dodge  County  Mutual  Insurance  Company. 

January  Term,   1875. 

(37  Wis.  503.) 

This  was  an  action  on  an  insurance  policy  for  the  loss 
of  a  quantity  of  wheat  in  stacks.  Defendant  had  judgment 
in  the  lower  court  dismissing  the  complaint.  The  insur- 
ance was  for  the  term  of  five  years.  The  policy,  among 
other  things,  insured  plaintiff  against  loss  or  damage  by 
fire  to  the  extent  of  "three  hundred  dollars  on  his  granary 
and  wagon  house ;  three  hundred  dollars  on  his  grain  there- 
in or  in  stack."  The  application  of  the  plaintiff  on  which 
the  policy  was  issued  contained  the  following  specifica- 
tions: "In  the  town  of  Chester,  county  of  Dodge,  state  of 
Wisconsin."  "Description  of  land  on  which  buildings 
stand,  sec.  19,  town  13,  range  15."  Some  months  after  the 
policy  was  issued  plaintiff  bought  other  land  in  the  town 
of  Chester,  county  of  Dodge,  state  of  Wisconsin,  and  it 
was  upon  this  land  that  he  harvested  and  stacked  the  wheat, 
which  was  destroyed  by  fire,  and  it  was  to  recover  for  this 
loss  that  the  action  was  brought.  The  cause  was  first  argued 
in  the  Supreme  Court  at  the  June  Term  in  1874.  Former 
Chief  Justice  Dixon  appeared  as  counsel  for  the  respond- 
ent Insurance  Company. 

Mr.  Justice  Lyon  writing  for  the  Supreme  Court  on  the 
appeal  of  the  Insurance  Company  held,  in  substance,  that 
the  contract  of  insurance  in  respect  to  the  wheat  in  stack 
named  in  the  policy  was  not  limited  by  the  terms  thereof 
to  wheat  stacked  or  grown  upon  the  land  owned  by  the 
plaintiff  at  the  time  the  policy  was  issued;  but  that  the 
language  of  the  policy  was  broad  enough  to  permit  a  re- 
26 


Opinions  of  Chief  Justice  Ryan.  402 

covery  by  the  plaintiff  for  any  grain  in  stack  belonging  to 
him  in  the  town  of  Chester,  and  ordered  judgment  for  the 
plaintiff. 

Mr.  Justice  Dixon  moved  for  a  re-hearing  and  filed  a 
most  vigorous  argument  in  support  of  his  motion. 

Without  receding  from  the  construction  which  had  been 
given  to  the  policy  the  court  granted  the  motion  for  a  re- 
hearing very  largely  upon  the  ground  first  advanced  by 
Mr.  Dixon  on  the  motion  for  re-argument,  that  the  policy 
construed  as  the  court  had  construed  it  was  a  wager  policy. 
It  was  after  the  re-hearing  that  the  opinion  of  Chief  Jus- 
tice Eyan  hereafter  set  out  was  rendered. 

The  other  material  facts  sufficiently  appear  from  the 
opinion. 

The  following  propositions  of  law  were  decided : 

In  the  application  upon  which  a  policy  of  insurance 
against  fire  was  based  (which  application  was  by  the 
terms  of  the  policy  made  a  part  thereof),  the  prop- 
erty to  be  insured,  and  the  insured  value  thereof, 
were  described  as  follows  (a  printed  form  furnished 
by  the  insurer  being  apparently  used  for  the  pur- 
pose) :  "Main  barn,  east  of  new  barn,  $500;  hay 
therein  or  in  stack  within  ten  rods  of  the  farm  build- 
ings; grain  therein  or  in  stack;  farming  utensils 
therein ;  live  stock  therein  or  running  at  large,  $200 ; 
•on  barn  ISTo.  2 ;  hay  therein  or  in  stack  within  ten  rods 
of  farm  buildings  grain  therein  or  in  stack ;  farming 
utensils  therein;  live  stock  therein  or  running  at 
large;  granary  and  wagon  house,  $300;  grain  there- 
in or  in  stack,  $300 ;  farming  utensils  therein ;  total, 
.$1,300.  In  the  town  of  Chester  in  the  County  of 
Dodge,  state  of  Wisconsin.  Description  of  land  on 
-which  buildings  stand — sec.  19,  town  13,  range  15." 


403  Sawyer  v.  Insurance  Co. 

In  the  policy  the  description  of  the  property  and  the 
insured  value  is:  "Five  hundred  dollars  on  his  main 
barn;  two  hundred  dollars  on  his  live  stock  therein 
and  when  running  at  large ;  three  hundred  dollars  on 
his  granary  and  wagon  house;  three  hundred  dollars 
on  his  grain  therein  or  in  stack."  The  risk  was  for 
five  years.  When  the  policy  was  issued,  the  assured 
owned  and  occupied  a  farm  in  the  town  of  Chester, 
on  sees.  17,  19  and  20,  being  a  single  tract  of  land 
and  containing  380  acres.  A  few  months  later  he 
purchased  an  additional  twenty  acres  in  said  sec.  17, 
but  not  adjoining  his  other  lands.  Afterwards  he 
raised  and  stacked  wheat  on  said  additional  tract; 
and  this  action  was  brought  on  the  policy  for  the  value 
of  such  stacks,  which  had  been  destroyed  by  fire. 
Held, 

(1)  That  the  policy  is  to  be  interpreted  by  the  same 
rules  which  determine  the  effect  of  any  other  con- 
tract. 

(2)  That  the  application  for  the  policy  is  to  be  con- 
sidered a  part  of  the  contract  of  insurance. 

(3)  That  at  least  all  latent  ambiguities  in  the  con- 
tract may  be  explained  by  extrinsic  evidence. 

(4)  That  the  maxim  that  "general  words  may  be 
aptly  restrained  according  to  the  subject  matter  or 
person  to  which  they  relate,"  is  justly  applicable  to 
this  contract;  and  that  some  limitation  is  to  be  put 
upon  the  words  "grain  in  stack." 

(5)  That  as  plaintiff,  when  he  took  the  policy,  was 
engaged  in  the  business  of  raising  grain,  and  was  not 
dealing  in  it  in  any  other  way,  the  risk  as  to"  grain 
should  perhaps  be  limited  to  such  as  was  raised  by 
him. 


Opinions  of  Chief  Justice  Ryan.  404 

(6)  That,  taking  all  the  words  and  provisions  of 
the  application  and  policy  together,  and  all  the  facts 
above  stated,  there  is  no  ground  for  restricting  the 
words  "grain  in  the  stack"  further  than  to  grain  raised 
and  stacked  (by  the  assured)  in  the  town  of  Chester. 

(7)  That  defendant  is  therefore  liable  for  the  value 
of  the  stacks  of  grain  described  in  the  complaint. 

The  fact  that  in  the  printed  form  of  application  fur- 
nished by  the  company  there  is  a  limitation  inserted 
as  to  "hay  in  stack/'  which  is  entirely  omitted  from 
the  specification  as  to  "grain  in  stack,"  favors  the  con- 
struction of  the  contract  above  given. 

The  specification  as  to  "live  stock  running  at  large" 
cannot  reasonably  be  limited  to  live  stock  running  at 
large  on  section  19,  and  this  also  favors  the  view  that 
the  words  "grain  in  stack"  are  not  to  be  limited  to 
grain  stacked  in  that  section. 

Eire  insurance,  on  time,  by  open  policies,  of  the  future 
material  productions  of  the  assured  in  the  course  of 
his  business,  in  his  trade  or  calling,  axe  valid  con- 
tracts of  indemnity,  and  not  wager  policies.  And  the 
policy  in  suit  is  valid  as  applied  to  the  loss  for  which 
a  recovery  is  here  sought,  although  the  grain  destroyed 
was  raised  by  plaintiff  upon  land  acquired  by  him 
after  the  date  of  the  policy. 

Eyan,  Chief  Justice.  The  eminent  gentleman  who  rep- 
resented the  respondent  on  the  motion  for  rehearing  and 
on  the  rehearing  of  this  appeal,  seems  unreconciled  to  our 
construction  of  his  client's  policy.  Though  the  question 
was  not  left  open  on  the  rehearing,  we  have,  in  deference 
to  his  persistent  dissent,  again  looked  into  the  policy ;  and 
we  do  not  see  how  we  could  have  given  it  a  different  con- 


405  Sawyer  v.  Insurance  Co. 

struction,  without  disregarding  old  rules  of  construction  or 
inventing  new  ones  for  the  exigencies  of  the  case.  And, 
after  all,  it  seems  to  us  that  his  complaint  should  go  to  his 
client  rather  than  to  the  court,  for  the  gist  of  it  is  more 
that  the  policy  ought  not  to  read  as  we  read  it,  than  that  it 
does  not.  The  policy  defines  its  own  limits,  which  we  could 
not  change  because  they  are  said  to  be  inconvenient.  If 
insurance  companies  would  exercise  like  skill  in  the  manu- 
script of  their  policies  as — perhaps  not  always  fairly 
(Ins.  Co.  v.  Slaughter,  12  Wall.  404;  Fuller  v.  Ins.  Co., 
36  Wis.  599) — in  the  printed  conditions,  they  might  avoid 
such  occasions  of  scolding  courts  for  reading  their  risks  as 
they  write  them. 

We  ordered  a  rehearing  of  the  appeal,  in  order  to  hear 
discussed  at  the  bar  a  difficulty  first  suggested  on  the  mo- 
tion :  that  the  policy,  as  we  construe  it,  is  a  wager  policy 
and  void.  We  suppose  that  insurance  companies  have  a 
right  to  make  that  objection  to  their  policies,  at  the  risk 
perhaps — if  successful — of  quo  warranto.  And  we  shall 
consider  the  proposition,  without  regard  to  its  good  faith. 
It  is  grave  and  difficult.  As  Lyon,  J.,  said  in  granting  the 
rehearing:  "The  practice  of  issuing  policies  of  insurance 
for  long  time  and  upon  property  not  in  esse,  has  become 
very  common ;  and  our  determination  of  this  question  may 
be  far  reaching  in  its  results." 

The  appellant  is  a  farmer,  cultivating  his  own  land. 
After  he  took  his  policy,  which  is  an  open  one,  he  pur- 
chased in  the  same  town,  but  not  adjoining  his  former 
land,  another  small  piece  which  he  also  cultivated,  and  on 
which  he  raised  and  stacked  the  grain  lost  by  fire.  And 
it  is  claimed,  that  because  he  did  not  own  this  land  at  the 
date  of  the  policy,  he  had  not  insurable  interest  in  the 
grain ;  and  that  the  policy,  applying  to  it,  is  gaming  insur- 


Opinions  of  Chief  Justice  Ryan.  406 

\ 

ance  and  void.  The  question  was  argued  with  great  learn- 
ing and  ability.  It  is  not  one  of  conflicting  authorities.  It 
turns  rather  on  the  proper  application  of  admitted  prin- 
ciples. The  cases  cited  will  appear  in  the  report  of  the 
argument;  and  we  propose  to  consider  the  principles  and 
their  application  rather  than  the  cases  in  detail. 

A  radical  difficulty,  perhaps,  which  has  led  to  more  or 
less  confusion  in  distinguishing  what  are  gaming  policies, 
is  that  insurance  is  essentially  a  wager;  upheld  for  in- 
demnity, avoided  for  gaming,  but  always  a  wager;  so 
plainly  recognized  in  our  law.  R.  S.,  ch.  169,  sees.  16-18. 

There  has  long  been  an  effort  at  distinction  between 
what  are  called  interest  policies  and  wager  policies,  which 
has  not  always  been  very  happy.  For  policies  have  been 
upheld  which  look  like  mere  wagers;  and  policies  have 
been  held  for  wagers,  which  would  go  only  to  indemnify 
the  assured.  The  rule  of  distinction,  was,  perhaps,  too 
arbitrary,  and  did  not  always  operate  justly.  And  it  is, 
perhaps,  to  this  cause,  as  well  as  to  change  in  the  usages 
of  business,  that  later  relaxation  of  older  rules  is  to.  be 
attributed. 

"An  interest  policy  is  one  which  shows  by  its  form  that 
the  assured  has  a  real,  substantial  interest ;  in  other  words, 
that  the  contract  of  insurance,  embodied  by  the  policy,  is 
a  contract  of  indemnity,  and  not  a  wager.  A  wager  policy 
is  one  which  shows  on  the  face  of  it  that  the  contract  it  em- 
bodies is  really  not  an  insurance,  but  a  wager ;  a  pretended 
insurance  founded  on  an  ideal  risk,  where  the  assured  has 
no  interest  in  the  thing  insured."  Am.  Ins.  17. 

In  marine  insurance,  there  was  long  disregard  of  the 
gaming  character  of  the  contract;  and  policies,  interest  or 
no  interest,  were  tolerated.  But  in  fire  insurance,  there 
was  always  a  policy  to  limit  the  gaming  character  of  the 


407  Sawyer  v.  Insurance  Co. 

contract  and  to  confine  it  to  indemnity,  by  requiring  an  in- 
terest or  property  in  the  thing  insured,  at  the  time  of  in- 
surance and  at  the  time  of  loss.  Sadlers'  Co.  v.  Badeock, 
2  Atkyns,  554. 

It  will  be  perceived  at  once  that  this  rule  is  not  a  very 
happy  one  for  its  object  For  it  avoids  policies  strictly  for 
indemnity,  when  title  happens  to  follow  insurance  in  order 
of  time ;  and  it  sanctions  insurance  on  interest  in  anything ; 
soon  held  to  include  things  in  posse,  mere  expectancies,  lit- 
tle distinguishable  from  pure  wagers. 

This  rule  has  never  been  wholly  abandoned.  Indeed,  it 
is  still  constantly  asserted,  while  its  application  is  often 
relaxed  and  sometimes  evaded.  The  extent,  variety  and 
intricacy  of  business  into  which  insurance  enters,  in  late 
times,  has  so  greatly  modified  the  convenience  of  the  latter, 
that  what  is  now  insurable  interest  has  become  too  vague 
and  too  subtle  for  definition  by  such  jurists  as  Judge  Story 
and  Mr.  Phillips,  as  cited  by  the  respondent's  counsel.  The 
truth  is,  that  the  present  practice  of  insurance,  to  a  great 
extent,  has  outgrown  and  is  not  consistent  with  the  broad 
principle  of  property  or  interest  in  the  thing  insured  at  the 
time  of  insurance. 

Wh  ether  the  present  scope  of  fire  insurance  tends  to  pub- 
lic good  or  evil,  may  be  doubted.  In  Fuller  v.  Ins.  Co., 
decided  early  in  his  term,  we  had  occasion  to  remark  that : 
"It  is  little  to  say  that  the  very  general  habit  of  insurance 
against  fire  has  led  to  great  carelessness.  The  destruction 
of  property  by  fire  and  the  consequent  loss  to  the  common- 
wealth have  been  probably  increased  largely  by  insurance." 
But  we  have  no  power  to  reform  it  We  can  only  apply  to 
it,  as  it  is,  as  well  as  we  can,  the  principles  governing  it 
which  we  find  in  the  books. 

Whether  it  might  be  wise  or  unwise  to  recur  to  the  strict 


Opinions  of  Chief  Justice  Ryan.  408 

rule  of  property  or  interest  in  the  thing  insured  at  the  time 
of  insurance,  need  not  be  considered.  The  current  of  judi- 
cial decision  has  run  too  long  and  too  strongly  in  favor  of 
distinctions  and  evasions  devised  to  accommodate  modern 
usages  of  business,  to  leave  that  possible,  as  was  frankly 
admitted  by  the  learned  counsel  of  the  respondent. 

And  we  are  not  willing,  as  we  wei  j  invited,  to  apply  the 
general  principle  arbitrarily  to  every  policy,  not  taken  out 
of  it  by  some  particular  adjudication;  blindly  enforcing 
the  rule  and  refusing  to  enforce  it,  in  cases  not  distinguish- 
able in  principle.  We  must  find,  if  we  can,  the  grounds 
on  which  the  exceptions  rest,  in  order  to  determine  whether 
the  policy  in  this  case  be  under  the  rule  or  within  the  ex- 
ceptions. 

We  do  not  know  where  the  rule  and  the  reason  of  it  are 
better  stated  than  by  Sewall,  J.,  in  Stetson  v.  Ins.  Co.,  4 
Mass.  330:  "It  is  a  maxim  of  public  policy,  important  to 
good  morals  and  for  the  prevention  of  frauds  in  contracts 
of  this  nature,  that  gaming  insurances,  insurances  without 
interest,  are  unlawful  and  of  no  validity.  It  is  incumbent, 
therefore,  on  a  party  claiming  a  loss  upon  a  policy  of  insur- 
ance, to  show  interest  in  the  subject  of  it ;  and  his  demand 
must  appear  to  be  for  an  indemnity,  and  not  for  a  wager, 
become  successful,  as  in  this  instance,  by  a  public  ca- 
lamity." 

It  may  be  worth  notice,  in  passing,  that  in  his  statement 
of  the  reason  of  the  rule,  the  learned  judge  rests  it  on  the 
presence  or  absence  of  interest,  not  on  the  time  of  acquiring 
interest ;  not  that  he  did  not  understand  the  importance  of 
time  in  the  rule,  but  that  it  did  not  suggest  itself  to  his 
mind  in  giving  the  logic  of  the  rule. 

And  when  we  consider  what  is  now  held  for  insurable 
interest,  we  see  at  once  how  the  practice  of  insurance  up- 


409  Sawyer  v.  Insurance  Co. 

held  by  the  courts  has  outgrown  the  strictness  of  the  rule 
of  property  or  interest  in  the  thing  insured  at  the  time  of 
insurance,  held  in  Sadlers'  Co.  v.  Badcock,  and  the  earlier 
cases.  Says  Lawrence,  J.,  in  Lucena  v.  Craufurd,  5  Bos. 
&  Pull.  269 :  "Interest  does  not  necessarily  imply  a  right 
to  the  whole  or  a  part  of  the  thing,  nor  necessarily  and  ex- 
clusively that  which  may  be  the  subject  of  privation,  but 
the  having  some  relation  to  or  concern  in  the  subject  of  the 
insurance."  Says  Phillips,  sec.  1Y3 :  "It  is  not  requisite, 
however,  that  the  thing  to  which  the  insurance  relates,  or 
the  interest  of  the  assured,  should  be  a  species  of  prop- 
erty, subject  to  possession  or  tradition,  or  that  the  interest 
should  be  that  of  absolute  ownership,  or  that  the  subject 
should  be  such  as  to  have  a  value  or  price,  or  be  capable  of 
being  assigned."  Says  Story,  <L,  in  Hancox  v.  Ins.  Co., 
3  Sumner,  132 :  "I  am  not  aware  that  any  decision  has 
been  made,  by  which  it  has  been  established  that  an  in- 
terest ceases  to  be  insurable  in  the  progress  of  a  voyage, 
simply  because  it  is  subject  to  contingencies,  or  has  not  at 
the  moment  anything  corporeal  or  tangible  to  which  it  is 
attached.  What,  indeed,  upon  such  an  interpretation, 
would  become  of  insurance  upon  profits  or  commissions  or 
freight,  which  are  in  the  course  of  being  earned?  One 
difficulty  of  the  argument  is  in  likening  an  insurable  in- 
terest to  any  other  interest  in  property.  The  truth  is  that 
an  insurable  interest  is  sui  generis,  and  peculiar  in  its  tex- 
ture and  operation.  It  sometimes  exists  where  there  is  not 
any  present  property  or  jus  in  re  or  jus  ad  rem." 

When  insurable  interest  is  held  not  to  imply  right  in  the 
thing  insured  or  jus  in  re  or  jus  ad  rem,  to  be  sui  generis 
and  unlike  any  other  interest  in  property,  to  be  not  neces- 
sarily of  value  or  assignable,  it  needs  little  consideration  to 
perceive  that  the  latitude  of  interest  emasculates  the  rule. 


Opinions  of  Chief  Justice  Ryan.  410 

Still  some  of  the  conditions  might  be  restricted  to  actual 
things,  subsisting  property ;  the  insurable  interest  in  posse, 
but  the  subject  in  esse.  But  that  limit  is  also  rejected. 
Says  Judge  Story,  iibi  supra:  "Inchoate  rights  founded  on 
subsisting  titles,  are  insurable."  Says  Arnould,  230 ;  "An 
expectancy,  coupled  with  a  present  existing  title  to  that  out 
of  which  the  expectancy  arises,  is  an  insurable  interest." 

When  it  appears  that  the  subject  of  insurance,  once 
called  the  thing  insured,  may  be  inchoate  rights,  expect- 
ancies, incapable  of  possession  or  tradition,  not  corporeal 
or  tangible,  of  no  value,  the  question  suggests  itself,  what 
does  the  latitude  of  insurable  interest  and  the  latitude  of 
the  subject  of  insurance,  leave  of  the  rule  of  interest  in  the 
thing  insured  at  the  time  of  insurance,  or  of  the  reason  of 
the  rule  ?  For  it  appears  that  interest  in  one  thing  in  esse 
will  support  insurance  of  another  thing  in  posse,  an  ex- 
pectancy from  the  thing  in  esse.  There  cannot  be  present 
title  in  nonentity.  One  thing  may  produce  another;  and 
the  owner  of  the  former  become  the  owner  of  the  latter, 
when  produced  and  not  before.  Yet  insurable  interest,  in- 
terest in  the  thing  insured  at  the  time  of  insurance,  may 
be  interest  in  posse,  in  a  thing  in  posse,  when  the  expect- 
ancy is  founded  on  interest  in  another  thing. 

In  this  state  of  the  law,  well  might  the  supreme  court  of 
Massachusetts  exclaim,  that  the  line  where  interest  ends 
and  expectation  begins  is  almost  shadowy.  Putnam  v.  Ins. 
Co.,  5  Mete.  386. 

It  would  be  waste  of  time  to  discuss  the  extent  of  this 
effectual  evasion  of  the  principle  of  Sa'dlers'  Co.  v.  Bad- 
cock  and  Stetson  v.  Ins.  Co. 

But  so  far,  a  subsisting  interest  of  some  kind,  in  some- 
thing, is  required ;  and  the  appellant  could  have  valid  in- 
surance on  his  expectancy  of  crop  from  land  owned  at  the 


411  Sawyer  v.  Insurance  Co. 

time  of  insurance,  but  not  from  land  acquired  pending  the 
policy.  It  is  easy  to  understand  how  insurance  of  his  fu- 
ture crop,  ungathered,  ungrown,  unsown,  should  be  held  a 
wager  policy.  But  when  the  law  has  made  his  expectancy 
of  crop  insurable  interest,  it  is  more  difficult  to  under- 
stand how  the  date  of  his  title  to  the  land  from  which  the 
crop  is  to  come  can  make  his  insurance  more  or  less  gam- 
ing. In  the  ordinary  sense  of  gaming,  it  is  in  the  chance, 
and  the  chance  is  in  the  crop.  And  when  interest  is  made 
the  test  of  wager  policies,  it  is  interest  in  the  thing  insured :. 
interest  in  the  crop,  which  is  purely  speculative:  equally 
speculative,  whether  title  to  the  land  come  before  or  after 
policy  issued,  or  come  at  all.  For  interest  in  the  crop  at- 
taches only  when  the  crop  is  raised,  and  attaches  equally 
whenever  and  however  the  land  is  acquired  from  which  it 
is  raised.  But  be  that  as  it  may,  if  the  relaxation  of  the 
rule  stopped  where  we  left  it,  the  appellant's  policy,  as  ap- 
plicable to  his  loss,  would  be,  within  the  authorities,  a 
wager  policy  and  void. 

But  great  as  is  the  latitude  so  far  considered  in  the  ap- 
plication of  the  rule  of  insurable  interest  at  the  time  of 
insurance,  it  is  manifest  that  it  still  falls  short  of  sup- 
porting large  classes  of  policies  in  the  present  practice  of 
insurance.  The  goods  of  merchants,  manufacturers,  ware- 
housemen and  the  like,  often  insured  against  fire,  are  nec- 
essarily and  constantly  changing  pending  the  policies  upon 
them ;  and  the  interest  of  the  assured  in  them  accrues  only 
upon  purchase  or  possession.  The  insured  have  no  title  in 
the  source  from  which  the  goods  proceed ;  not  even  a  naked 
expectancy  of  the  goods  in  specie,  which  may  not  be  in  esse 
at  the  date  of  insurance.  And  the  insurance,  at  its  date,  is 
of  a  naked  probability,  resting  on  no  title  or  interest,  direct 
or  indirect,  immediate  or  remote,  inchoate  or  contingent. 


Opinions  of  Chief  Justice  Ryan.  412 

And  such  insurance  would  be  clearly  void  under  the  gen- 
eral rule.  May,  Ins.  sec.  78. 

And  yet,  notwithstanding  the  dictum  that  "the  bare  pos- 
sibility that  a  right  to  property  might  hereafter  arise  can- 
not be  considered  an  insurable  interest"  (McCarty  v.  Ins. 
Co.,  17  La.  O.  S.  365),  the  convenience  of  business  requires 
such  insurance,  and  open  policies  of  that  character  are  con- 
stantly upheld  to  cover  subsequent  purchases  of  goods. 
Phil.  Ins.  491;  Angell,  Ins.  203;  Lane  v.  Ins.  Co.,  12  Me. 
44;  Cushman  v.  Ins.  Co.,  34  id.  487;  Hooper  v.  Ins.  Co., 
17  K  T.  424 ;  Hoffman  v.  Ins.  Co.,  32  id.  405 ;  Wolfe 
v.  Ins.  Co.,  39  id.  49;  Bonner  v.  Ins.  Co.,  13  Wis.  677; 
Keeler  v.  Ins.  Co.,  16  id.  523 ;  Pupke  v.  Ins.  Co.,  17  id. 
378;  Fitzsimmons  v.  Ins.  Co.,  18  id.  234. 

It  is  not  a  little  remarkable  that  this  great  change  in  the 
law  of  insurance  seems  to  have  come  about  with  little  strug- 
gle or  attention.  Courts  seem  to  have  fallen  in,  without 
hesitation,  with  the  changed  necessities  of  trade,  and  took 
little  trouble  to  discuss  the  grounds  of  so  great  a  departure 
from  the  old  rule.  A  weak  attempt  was  sometimes  made 
to  reconcile  the  rule  and  the  exception,  by  the  suggestion 
that  goods  added  to  a  stock  are  proceeds  of  goods  sold 
from  it.  We  take  it  that  this  is  not  always  true  in  fact; 
and  as  it  is  not  required  to  be  pleaded  or  proved,  the  change 
of  rule  cannot  rest  on  it.  The  cases  are  a  departure  from 
the  old  rule,  forced  upon  the  courts  by  the  changing  usages 
of  life,  and  for  which  the  subtle  evasions  of  the  rule  in  pre- 
vious adjudications  had  well  prepared  the  way. 

These  cases  wholly  dispense  with  insurable  interest  in 
the  goods  insured  at  the  time  of  insurance,  and  plainly 
stand  beyond  "the  very  borders  of  the  line,  which  may  be 
deemed  almost  shadowy,  where  interest  ends  and  expecta- 
tion begins,"  fulfilling  the  foreboding  that,  so  far  and  in 


413  Sawyer  v.  Insurance  Co. 

that  sense  of  wager  policies,  "the  difference  between  wager 
policies  and  those  coupled  with  an  interest  must  cease." 
Putnam  v .  Ins.  Co.,  supra.  For  the  same  thing  may  come 
successively  under  several  contemporaneous  policies,  wholly 
independent  of  interest  at  the  time  of  insurance.  Wheat, 
for  example,  may  be  covered  by  the  insurance  of  the  farmer 
who  raises  it,  of  the  produce  man  who  buys  it,  of  the  miller 
who  grinds  it,  of  the  merchant  who  sends  the  flour  to  mar- 
ket, of  the  dealer  who  retails  it,  and  of  the  consumer  till  he 
eats  it;  and  all  their  policies  may  precede  the  sowing  of 
the  crop. 

This  class  of  cases  proceeds,  perhaps,  on  the  authority  of 
Rhind  v.  Wilkinson,  2  Taunt.  237,  followed  in  this  coun- 
try by  such  cases  as  Haven  v.  Gray,  12  Mass.  71 ;  Whitney 
v.  Ins.  Co.,  3  Cowen,  210 ;  Dow  v.  Ins.  Co.,  1  Hall,  166. 
The  rule  in  Rhind  v.  Wilkinson  goes  upon  what  is  there 
stated  to  be  every  day's  practice,  to  insure  goods  on  a  re- 
turn voyage  long  before  the  goods  are  bought,  and  is,  that 
it  is  enough  if  the  interest  of  the  assured  accrue  previous 
to  the  commencement  of  the  risk.  It  is  easy  to  apply  this 
rule  to  new  goods  purchased  by  a  dealer,  in  his  course  of 
business ;  the  risk  not  attaching  to  the  goods  until  they  are 
brought  under  the  policy. 

Be  that  as  it  may,  Rhind  v.  Wilkinson  and  the  cases  fol- 
lowing it  substitute  interest  at  the  time  of  the  commence- 
ment of  the  risk  for  interest  at  the  time  of  insurance.  It 
is  said  that  interest  at  a  day  previous  to  the  commencement 
of  the  risk  is  immaterial.  That  was  marine  insurance. 
There  the  risk  began  with  the  voyage.  In  fire  insurance, 
on  movable  goods,  the  risk  begins  when  the  goods  are 
brought  within  the  terms  of  the  policy.  And  perhaps  the 
cases  upon  fire  policies  of  merchants,  etc.,  go  no  farther  in 
principle,  though  they  seem  to  rest  on  interest  at  the  time 
of  loss. 


Opinions  of  Chief  Justice  Ryan.  414 

And  whatever  evils  may  possibly  arise  from  these  relaxa- 
tions of  the  old  rule,  it  is  not  seen  how  they  admit  what  are 
called  wager  policies  as  distinguished  from  interest  poli- 
cies; for  the  policies  which  they  uphold  go  strictly  to  in- 
demnity. And  it  may  be  doubted,  after  all,  whether  in- 
terest at  the  time  of  loss,  without  interest  at  the  time  of 
insurance,  may  not  be  as  good  a  protection  against  gaming 
policies  as  both  were  under  the  old  rule. 

In  the  present  case,  the  policy  is  for  five  years,  covering 
grain  in  stacks  and  granary,  for  five  successive  crops.  It 
is  conceded,  under  the  authority  cited,  that  he  had  insur- 
able  interest  in  the  five  years'  expectancy  of  grain  in  posse, 
to  be  raised  on  the  land  which  he  owned  at  the  time  of  in- 
surance; but  it  is  claimed  that  so  far  as  the  policy  covers 
grain  to  be  raised  from  land  which  he  did  not  then  own, 
it  is  pro  tanto  wager  insurance,  void  as  against  public 
policy.  It  is  easy  to  understand  the  distinction  between 
expectancy  founded  on  title  and  expectancy  not  founded 
on  title ;  but  it  is  more  difficult  to  appreciate  how  the  two 
relations  of  the  policy,  to  land  owned  and  land  not  owned 
at  its  date,  differently  affect  public  policy,  or  to  understand 
how  such  an  insurance  is  distinguishable  in  principle  from 
a  merchant's  or  manufacturer's. 

Insurance  on  the  stocks  of  merchants,  mechanics  and  the 
like,  is  insurance  on  the  material  of  their  industry,  and 
may  in  some  sort  be  regarded  as  insurance  on  the  industry 
itself.  In  that  light,  interest  in  the  industry  might  be 
taken  as  insurable  interest  at  the  time  of  insurance,  in  the 
expectancy  of  the  material,  although  actual  interest  in  that 
come  after.  Whether  that  be  so  or  not,  we  find  it  difficult 
to  understand  how  or  why  the  law  of  insurance  should  favor 
one  industry  more  than  another.  It  is  a  merchant's  busi- 
ness to  buy  and  sell  goods ;  a  manufacturer's,  to  make  fab- 


415  Sawyer  v.  Insurance  Co. 

TIGS  from  raw  material ;  a  farmer's  to  raise  produce  from 
the  earth.  The  merchant  may  have  valid  insurance  cov- 
ering all  goods  he  may  have  on  hand  from  time  to  time 
during  the  life  of  his  policy;  the  manufacturer,  covering 
all  the  raw  material  he  may  have  on  hand  and  all  the  fab- 
rics he  may  make  from  time  to  time  during  the  life  of  his 
policy.  These  do  not  rest  on  interest  in  the  goods  at  the 
time  of  insurance;  but  perhaps  on  the  course  of  business. 
The  merchant's  goods  may  not  yet  be  manufactured,  and 
the  manufacturer's  raw  material  may  be  growing  in  forests 
or  hidden  in  the  bowels  of  mines  to  which  he  is  a  stranger. 
These  policies  being  upheld,  on  what  principle  is  an  agri- 
culturist excluded  from  the  same  protection  of  his  in- 
dustry, in  his  course  of  business ;  from  valid  insurance  on 
the  grain  which  he  may  raise  and  have  on  hand  from  time 
to  time  during  the  life  of  his  policy,  without  regard  to  his 
title  at  the  time  of  insurance?  On  what  principle  is  his 
insurance  on  his  productions  to  be  limited  by  his  title  at 
time  of  insurance,  and  not  the  manufacturer's  or  me- 
chanic's ?  We  confess  that  we  are  unable  to  perceive  how 
or  why  a  policy  in  the  one  case  should  be  held  a  wager 
policy,  forbidden  by  law,  and  policies  in  the  others  up- 
held as  proceeding  on  insurable  interest 

There  may  be,  and  presumably  are,  mechanics  and  man- 
ufacturers without  other  capital  than  their  skill.  So  there 
may  be,  and  presumably  are,  farmers  not  owning  land. 
On  what  principle  can  the  former  be  upheld  in  insuring 
in  advance,  by  open  policies,  the  products  of  their  industry, 
and  not  the  latter  ? 

It  is  noticeable  in  the  policy  before  us,  that,  contrary  to 
common  usage,  there  is  no  question  asked  or  warranty  given 
of  title.  Certainly,  so  far  as  it  relates  to  grain,  the  insur- 
ance does  not  purport  to  rest  on  the  appellant's  title  to 


Opinions  o/  Chief  Justice  Ryan.  416 

realty.  We  cannot  hold  it  limited  by  the  extrinsic  fact  of 
what  realty  the  appellant  was  seized  or  not  seized  at  the 
date  of  the  policy.  And  we  see  no  reason  why  it  should 
not  operate  as  valid  insurance  for  indemnity  of  grain,  the 
product  of  his  industry,  in  the  course  of  his  business  as  a 
farmer.  We  must,  in  principle,  uphold  such  policies,  if 
we  are  to  continue  to  uphold  those  of  merchants  and  manu- 
facturers. The  truth  is  that  the  authorities  have  made  the 
exceptions,  practically,  broader  than  the  rule;  and  we  are 
disposed  to  hold  fire  insurances  on  time,  by  open  policies, 
of  the  future  material  production  of  the  assured,  in  the 
course  of  his  business,  in  his  trade  or  calling,  within  the 
exceptions,  and  valid  contracts  for  indemnity,  not  wager 
policies. 

By  the  Court. — The  judgment  of  the  court  below  is  re- 
versed, and  the  cause  remanded  for  a  new  trial. 

NOTE. 

Sawyer  v.  Dodge  County  Mut.  Ins.  Co.,  supra,  has  been 
cited  with  approval  in  the  Wisconsin  Supreme  Court,  as 
follows :  Lyman  v.  Babcock,  40  Wis.  512 ;  Stout  v.  Weaver, 
72  Wis.  150 ;  Legor  v.  Medley,  79  Wis.  220 ;  State  ex  rel. 
Lederer  v.  Inter.-lSTat.  Investment  Co.,  88  Wis.  520; 
Brandt  v.  Berlin,  etc.,  Co.,  108  Wis.  233. 

It  has  been-  cited  with  approval  outside  of  the  Wisconsin 
Supreme  Court,  as  follows:  Re  Denny,  156  Ind.  123,  51 
L.  R.  A.  730 ;  Sun  Ins.  Office  v.  Merz,  64  K  J.  L.  301, 
52  L.  R  A.  339,  note  on  page  340;  Soli  v.  Farmers  Mut. 
Ins.  Co.,  51  Minn.  28. 

It  has  been  cited  in  notes  to  the  following  cases  reported 
in  Am.  Dec.,  containing  valuable  collections  of  authorities : 
Strong  v.  Mfrs.'  Ins.  Co.  (10  Pick.  40),  20  Am.  Dec.  518  ; 
Keller  v.  Niagara  Fire  Ins.  Co.  (16  Wis.  523),  84  Am. 
Dec.  720;  Fitsimmons  v.  City  Fire  Ins.  Co.  (18  Wis. 
234),  86  Am.  Dec.  764;  Hoffman  v.  Aetna  Fire  Ins.  Co. 
(32  1ST.  Y.  405),  88  Am.  Dec.  349. 


417  State  ex  rel.  Drake  v.  Doyle. 

The  State  ex  rel.  Drake  vs.  Doyle,  Secretary  of  State. 

August  Term,  1876. 
(40  Wis.  175.) 

This  case  arose  upon  an  application  for  a  mandamus  to 
compel  the  Secretary  of  State  of  the  State  of  Wisconsin 
to  revoke  the  license  to  do  business  in  that  State  of  the  Con- 
tinental Insurance  Company  of  New  York.  The  petition 
for  the  writ  alleged,  among  other  things,  that  petitioner 
was  a  citizen  of  the  State  of  Wisconsin;  that  the  Conti- 
nental Insurance  Company  was  a  foreign  fire  insurance 
company;  that  in  May,  1874,  said  company  had  issued  a 
policy  in  the  State  of  Wisconsin  under  which  a  liability 
had  accrued  to  the  petitioner,  and  that  upon  action  having 
been  begun  against  the  company  in  the  State  Court  upon 
such  liability,  it  had  removed  the  cause  into  the  United 
States  Circuit  Court  for  the  Eastern  District  of  Wisconsin. 
The  petition  further  alleged  that  Peter  Doyle,  as  Secre- 
tary of  State  of  said  State  of  Wisconsin,  had  full  knowl- 
edge of  the  above  facts,  that  demand  had  been  duly  made 
of  said  Doyle,  as  Secretary  of  State,  to  revoke  the  license 
of  the  insurance  company,  but  that  said  Doyle,  as  such  offi- 
cer, had  refused  and  neglected  so  to  do. 

It  further  appeared  that  the  Wisconsin  statute  contained 
the  same  provisions  considered  by  the  Wisconsin  Supreme 
Court  in  Morse  v.  Insurance  Company,  30  Wis.  496,  and 
by  the  Supreme  Court  of  the  United  States  in  Insurance 
Company  v.  Morse,  20  Wall.  445,  by  which  every  foreign 
insurance  company  desiring  to  do  business  in  the  State,  as 
a  condition  of  being  permitted  so  to  do,  was  obliged  to 
agree  in  writing  that  it  would  not  remove  any  action 
brought  against  it  in  the  State  courts  into  the  Federal 
courts. 

27 


Opinions  of  Chief  Justice  Ryan.  418 

Section  1,  chapter  64,  Laws  of  1872  of  the  State  of  Wis- 
consin also  provided  that  in  case  a  foreign  insurance  com- 
pany doing  business  in  the  State  did  remove  a  cause  from 
the  State  to  the  Federal  court,  in  contravention  of  the  stat- 
utes thereof  and  its  agreement  made  thereunder,  it  should 
become  "the  imperative  duty  of  the  Secretary  of  State,  or 
other  proper  State  officer,  to  revoke  and  recall  any  author- 
ity or  license  or  certificate  to  such  company  to  do  and  trans- 
act any  business  in  the  State  of  Wisconsin." 

Upon  the  petition,  reciting  among  other  things  the  facts 
hereinbefore  noted,  an  alternative  writ  was  granted  by  the 
Wisconsin  Supreme  Court,  December  22,  1875.  There- 
after the  respondent  moved  to  quash  the  writ,  and  the  mo- 
tion was  denied.  Subsequently,  and  in  June,  1876,  the 
respondent  made  return  to  the  alternative  writ,  in  which  it 
was  stated,  among  other  things,  that  the  respondent  was 
advised  that  the  Wisconsin  statute,  above  referred  to,  was 
unconstitutional  and  void  and  the  agreement  made  under 
it  not  binding,  and  that  the  Supreme  Court  of  the  United 
States  had  so  decided.  The  return  further  stated  that  upon 
a  bill  of  complaint  filed  by  said  insurance  company  on  the 
28th  day  of  September,  1875,  against  said  Doyle,  as  Sec- 
retary of  State,  the  United  States  Circuit  Court  for  the 
Western  District  of  Wisconsin,  on  the  8th  day  of  October, 

1875,  had  issued  its  writ  of  injunction  commanding  said 
Doyle,  as  Secretary  of  State,  to  refrain  from  revoking,  an- 
nulling or  cancelling  the  license  of  such  insurance  com- 
pany.    The  return  also  stated  that  the  license  mentioned 
in  the  relation  had  expired  on  the  31st  day  of  January, 

1876,  and  that  in  February,  1876,  the  respondent  had  is- 
sued a  new  license  to  the  said  insurance  company.     The 
relator  demurred  to  the  return  as  insufficient,  and  the  de- 
murrer was  argued  on  the  7th  day  of  June,  1876. 


419  State  ex  rel.  Drake  v.  Doyle. 

The  opinion  of  the  Wisconsin  Supreme  Court,  herein- 
after set  out,  was  delivered  by  Chief  Justice  Ryan. 

The  other  facts  will  sufficiently  appear  from  the  opinion. 
The  following  are  the  propositions  of  law  decided : 

This  court  will  take  original  jurisdiction  of  the  writ  of 
mandamus,  upon  the  mere  relation  of  a  private  per- 
son, in  the  name  of  the  state,  to  compel  the  secretary 
of  state  to  revoke,  as  required  by  statute,  a  state  li- 
cense to  a  foreign  corporation  to  transact  business 
here,  forfeited  by  violation  of  its  conditions. 

The  jurisdiction  being  assumed  because  the  subject  mat- 
ter of  the  writ  affects  the  prerogatives  of  the  state,  and 
not  being  founded  upon  the  private  right  of  the  re- 
lator,  a  subsequent  settlement  between  him  and  the 
corporation,  leaving  him  without  further  interest  in 
the  application  is  immaterial. 

The  fact  that  the  statute  requiring  in  a  certain  contin- 
gency a  revocation  of  the  license  of  a  foreign  insur- 
ance company,  makes  no  provision  for  notice  to  the 
company,  does  not  affect  its  validity. 

The  acts  of  the  secretary  of  state  in  issuing  and  revok- 
ing licenses  to  foreign  insurance  companies  under  the 
statute,  are  ministerial  and  not  judicial,  although  he 
is  required  to  ascertain  the  existence  of  the  facts  upon 
which  his  authority  in  each  case  is  founded. 

Save  by  the  voluntary  license  of  the  state,  a  foreign  in- 
surance company  has  no  right  to  carry  on  its  business 
within  this  state;  and  the  state  has  power  to  make 
such  license  subject  to  the  company's  forbearance  'of 
a  right,  and  revocable  upon  the  exercise  of  such  right. 

Those  provisions  of  the  statutes  (ch.  56  of  1870  and 
ch.  64  of  1872)  which  authorize  the  issue  of  licenses 


Opinions  of  Chief  Justice  Ryan.  420 

to  foreign  insurance  companies  only  upon  condition  of 
their  filing  a  written  agreement  not  to  remove  to  the 
federal  courts  causes  commenced  against  them  in  the 
courts  of  this  state,  and  require  the  secretary  of  state 
to  revoke  such  licenses  upon  a  violation  of  that  agree- 
ment, are  valid.  Ins.  Co.  v.  Morse,  20  Wall.  445,  dis- 
tinguished, and  certain  obiter  dicta  therein  criticised. 

So  much  of  the  statute  as  requires  such  agreement  as 
a  condition  of  license  being  designed  as  a  compensa- 
tion for  the  provisions  authorizing  licenses,  if  the 
former  were  held  invalid,  the  latter  would  fall  with 
it;  the  secretary  of  state  in  issuing  the  license  here 
in  question  would  have  acted  without  authority ;  and 
the  court  would  compel  him  to  revoke  it. 

Where  a  suit  is  prosecuted  in  a  federal  court  by  a  priv- 
ate party  against  a  state  officer  who  has  no  personal 
interest  or  liability  in  the  action,  but  is  sued  in  his 
official  capacity  only,  to  affect  a  right  of  the  state  only, 
the  state  is  the  real  defendant,  within  the  prohibition 
of  the  Xlth  amendment  to  the  federal  constitution. 

A  circuit  court  of  the  United  States  has'  therefore  no 
jurisdiction  of  a  suit  by  a  foreign  corporation  to  re- 
strain a  state  officer  from  revoking  (as  required  by 
the  law  of  the  state)  a  license  granted  the  plaintiff 
corporation  to  do  business  in  the  state. 

Even  if  the  federal  court  had  authority  to  bind  the 
officer  in  such  a  case,  it  could  not  bind  the  state  in  the 
exercise  of  its  authority. 

A  valid  injunction  restraining  a  state  officer  from  revok- 
ing a  license  previously  issued  by  state  authority, 
would  be  spent  with  the  life  of  such  license,  and  would 
not  apply  to  a  new  license  subsequently  issued  under 
color  of  the  same  authority. 


421  State  ex  rel.  Drake  v.  Doyle. 

Ryan,  Chief  Justice.  The  facts  of  this  case  were  dis- 
cussed at  the  bar,  on  the  motion  to  quash  the  alternative 
writ.  But  as  some  of  them  did  not  then  appear  of  record, 
we  refrained  from  any  expression  of  opinion  in  overruling 
the  motion.  All  the  material  facts  are  now  before  us  for 
final  adjudication. 

It  appears  by  the  return  that  the  license  of  the  insurance 
company  in  force  when  these  proceedings  were  commenced, 
expired  by  limitation  pending  the  alternative  writ;  and 
that  some  three  days  after  the  motion  to  quash  the  alter- 
native writ  was  denied,  the  respondent  renewed  the  license 
for  another  year.  His  doing  so,  under  the  circumstances,, 
may  have  been  an  act  of  questionable  propriety.  But  the 
fact  itself  is  immaterial  here,  because  it  was  agreed  by 
counsel,  if  it  were  otherwise  doubtful,  that  if  a  peremptory 
writ  should  be  granted,  it  should  cover  any  subsisting 
license  issued  by  the  respondent  to  the  insurance  company. 

The  motion  to  quash  the  alternative  writ  was  argued 
for  the  respondent  by  the  attorney  general.  The  demurrer 
to  the  return  was  argued  for  the  respondent  by  the  learned 
counsel  who  represented  the  insurance  company  in  the  fed- 
eral court,  and  a  brief  was  afterwards  submitted  on  his  be- 
half by  the  attorney  general.  Different  questions  were 
raised  for  the  respondent  by  the  different  counsel,  which 
will  be  considered  in  proper  order. 

I.  It.  was  stated  by  the  attorney  general  that  the  suit 
of  the  relator  against  the  insurance  company  had  been 
settled ;  that  the  relator  has  no  further  interest  in  the  ques- 
tion, and  therefore  no  further  right  to  the  writ.  The  fact 
does  not  appear  of  record,  but  it  is  immaterial. 

So  far  as  the  private  right  of  the  relator  is  concerned, 
it  is  now  well  settled  that  this  court  would  not  assume 
original  jurisdiction  to  enforce  it  Attorney  General  v. 


Opinions  of  Chief  Justice  Ryan.  422 

Railroad  Cos.,  35  Wis.  425 ;  Attorney  General  v.  Eau 
Claire,  37  id.  400;  State  v.  Baker,  38  id.  71;  State  v. 
Supervisors,  id.  554.  But,  as  it  is  said  in  Attorney  Gen- 
eral v.  Railroad  Cos.,  "In  a  government  like  ours,  public 
rights  of  the  state  and  private  rights  of  citizens  often  meet, 
and  may  well  be  involved  in  a  single  litigation.  So  it  may 
be  in  the  exercise  of  the  original  jurisdiction  of  the  court." 
"The  prerogative  writs  can  issue  only  at  the  suit  of  the  state 
or  the  attorney  general  in  the  right  of  the  state."  "They 
may  go  on  the  relation  of  a  private  person,  and  may  involve 
private  right."  And  the  question  before  us  is  not  upon  the 
private  right  of  the  relator,  and  is  independent  of  the  acci- 
dent that  there  is  a  relator  in  the  case.  The  question  on 
which  the  exercise  of  jurisdiction  here  must  turn,  is, 
whether  the  subject  matter  of  the  writ  is  on  "quod  ad 
statum  republics  pertinet;  one  affecting  the  sovereignty 
of  the  state,  its  franchises  or  prerogatives."  Attorney 
General  v.  Eau  Claire.  And  on  this  question  there  ap- 
pears to  us  to  be  no  room  for  doubt. 

Save  by  the  voluntary  license  of  the  state,  the  insurance 
company  has  no  right  to  carry  on  its  business  within  the 
state.  The  state  sees  fit  to  grant  a  license  to  it,  upon  con- 
dition; instantly  revocable,  upon  condition  broken.  The 
insurance  company  breaks  the  condition;  but  claims  the 
right,  notwithstanding,  to  act  under  the  license  throughout 
the  state;  claims  that  the  condition  is  void,  and  that  the 
license  is  therefore  independent  of  the  condition  on  which 
it  was  granted.  And  it  assumes  to  carry  on  its  business 
throughout  the  state,  under  the  license,  in  defiance  of  the 
condition.  Here  is  very  plainly  a  direct  and  proximate 
interest  of  the  state  affecting  the  state  at  large,  in  some  of 
its  prerogatives,  and  raising  "a  contingency  requiring  the 
interposition  of  this  court  to  preserve  the  prerogatives  of 


423  State  ex  rel  Drake  u.  Doyle. 

the  state,  in  its  sovereign  character."  Attorney  General  v. 
Eau  Claire. 

The  statute  of  the  state  devolves  upon  the  respondent 
the  imperative  duty  of  revoking  the  license  of  the  insurance 
company,  upon  condition  broken,  and  prohibits  a  renewal 
of  the  license  for  three  years.  The  respondent  claims  that 
the  statute  so  far  is  void,  and  wholly  disregards  it.  Upon 
condition  broken,  he  refuses  to  revoke  the  subsisting  li- 
cense of  the  insurance  company,  and,  upon  its  expiration, 
renews  it.  Whether  the  respondent  be  right  or  wrong  in 
his  view,  and  that  is  for  this  court  and  not  for  him  to  deter- 
mine, it  is  very  certain  that  it  concerns  the  state  at  large, 
that  one  of  its  principal  officers  executes  his  office  in  posi- 
tive and  deliberate  disregard  of  a  public  statute  defining 
its  duties. 

Such  a  case,  when  presented,  is  one  eminently  calling 
for  the  exercise  of  our  original  jurisdiction;  one,  with  or 
without  a  relator,  eminently  fit  to  be  presented  to  the  court 
for  adjudication.  The  writ  of  mandamus,  in  such  a  case, 
eminently  serves  its  function  as  a  prerogative  writ. 

II.  It  was  objected  to  the  statute,  by  the  learned  counsel 
who  argued  the  demurrer,  that  it  provides  for  no  notice  to 
the  insurance  company,  gives  it  no  opportunity  of  being 
heard  on  the  question  of  revocation  for  condition  broken. 
It  might  have  been  more  provident  to  have  required  such 
notice;  but  that  rested  entirely  in  legislative  discretion. 
It  was  for  the  legislature  alone  to  say  whether  or  not  the 
insurance  company  should  have  license  to  act  within  the 
state;  and  if  so,  on  what  conditions,  and  how  revocable, 
such  license  should  be  granted.  Authorizing  such  a  li- 
cense out  of  its  mere  discretion,  it  was  competent  for  the 
legislature  to  impose  any  conditions,  reasonable  or  unrea- 
sonable, and  to  provide  for  revocation,  upon  any  cause  or 
no  cause,  in  any  manner  it  might  see  fit. 


Opinions  of  Chief  Justice  Ryan.  424 

It  was  for  the  insurance  company  to  elect  whether  it 
would  seek  or  accept  the  license  authorized,  on  the  very 
terms  on  which  it  was  offered,  at  its  own  peril  of  the  very 
power  of  revocation  reserved.  And,  having  elected  to  ac- 
cept the  license,  it  cannot  now  set  up  a  vested  right  in  the 
license,  inconsistent  with  the  license  and  in  defiance  of  the 
terms  and  conditions  in  which  it  was  granted.  It  volun- 
tarily ran  the  very  risk  of  summary  revocation,  ex  parte, 
to  which  it  now  objects.  It  took  the  license  cum  onere, 
and  has  no  just  ground  of  complaint  that  the  license  is  not 
more  favorable  to  its  interests. 

We  have  carefully  examined  the  numerous  authorities 
cited  on  this  point,  and  are  unable  to  discover  the  applica- 
tion of  any  of  them  to  the  revocation  of  a  voluntary  license, 
in  the  precise  manner  reserved  in  the  license  itself. 

III.  It  was  likewise  urged  that  the  duty  of  revocation 
imposed  upon  the  secretary  of  state,  operates  to  confer  judi- 
cial power  on  that  officer. 

We  cannot  think  that  either  the  power  to  grant  a  license 
or  the  power  to  revoke  it  involves  the  exercise  of  a  judicial 
function.  Both  appear  to  us  to  be  plainly  -and  equally 
ministerial  functions.  The  secretary,  upon  certain  facts 
appearing  to  him,  is  authorized  to  issue  a  license ;  upon  cer- 
tain other  facts  appearing  to  him,  is  required  to  revoke  it. 
This  is  a  common  condition  of  ministerial  duty.  In  such  a 
case,  the  ministerial  officer  must  exercise  his  personal  in- 
telligence in  ascertaining  the  fact,  upon  which  his  author- 
ity it  founded ;  but  he  acts  upon  his  peril  of  the  fact,  and 
can  in  no  sense  be  said  to  exercise  a  judicial  function.  If 
the  use  of  personal  judgment  in  such  cases  should  be  held 
to  be  judicial,  the  distinction  between  ministerial  and  ju- 
dicial functions  would  be  very  much  removed. 

The  secretary  of  state  is  a  ministerial  officer,  author- 
ized by  law  to  perform  different  duties,  upon  different 


425  State  ex  rel.  Drake  v.  Doyle. 

contingencies.  If  he  make  mistakes  of  facts  in  the  per- 
formance of  his  functions,  his  action  may  be  void  or  void- 
able only,  in  different  circumstances.  But  he  cannot  ju- 
dicially determine  the  facts  on  which  he  acts  or  refuses  to 
act.  This  can  only  be  done  by  the  courts,  whose  duty  it  is 
in  proper  cases,  to  review  his  action  and  determine  the 
facts  and  his  official  duty  upon  them. 

IV.  It  is  contended,  not  that  the  statute  of  the  state 
prescribing  the  condition  upon  which  license  shall  be 
granted,  is  a  violation  of  the  federal  constitution,  but  that 
it  has  been  so  adjudged  by  the  supreme  court  of  the  United 
States;  and  that  thereupon  and  thereby  the  statute  has 
ceased  to  have  any  force. 

For  the  purpose,  as  Waite,  C.  J.,  remarks  (20  Wall. 
459),  of  putting  foreign  insurance  companies  licensed  to 
do  business  in  this  state,  upon  an  equal  footing  with  its 
own  companies,  sec.  22  of  ch.  56  of  1870  requires  foreign 
companies,  before  license,  to  file  an  agreement  in  the  secre- 
tary's office,  not  to  remove  causes  against  them  from  the 
state  to  the  federal  courts. 

In  Morse  v.  Ins.  Co.,  30  Wis.  496,  the  insurance  com- 
pany had,  in  violation  of  its  agreement,  petitioned  the  state 
court  to  remove  the  cause  from  the  state  to  the  federal 
court,  under  the  act  of  congress.  This  court  held  the  agree- 
ment to  be  a  valid  relinquishment  of  the  right  of  such  re- 
moval, obligatory  upon  the  insurance  company,  and  gave 
judgment  against  it.  The  judgment  of  this  court  was 
taken  by  writ  of  error  to  the  supreme  court  of  the  United 
States ;  and  that  court,  in  Ins.  Co.  v.  Morse,  20  Wall.  445, 
reversed  the  judgment  of  this  court,  upon  the  ground  that 
such  an  agreement  did  not  deprive  the  insurance  company 
of  the  right  of  removal  to  the  federal  court,  under  the  con- 
stitution and  laws  of  the  United  States. 

The  question  was  certainly  not  free  from  the  difficulty; 


Opinions  of  Chief  Justice  Ryan.  426 

and  while  we  think,  with  all  due  deference,  that  the  weight 
of  authority  and  sound  principle  sustain  the  views  of  this 
court,  it  is  our  duty  and  pleasure  to  submit  to  the  decision 
of  the  federal  court,  on  a  point  unquestionably  within  its 
final  jurisdiction. 

Under  that  decision,  it  follows  that  the  jurisdiction  of 
the  state  court  in  that  case  was  ousted,  upon  the  presen- 
tation of  the  petition  to  remove  the  cause  to  the  federal 
court,  and  that  all  subsequent  proceedings  in  the  state 
courts  were  coram  non  judice.  Gordon  v.  Longest,  16  Pet. 
97 ;  Kanouse  v«  Martin,  15  How.  198 ;  Ins.  Co.  v.  Dunn, 
19  Wall.  214. 

The  sole  question,  therefore,  before  the  federal  court, 
upon  the  writ  of  error  in  Ins.  Co.  v.  Morse,  was,  whether 
the  right  of  the  insurance  company  to  remove  the  cause  to 
the  federal  court  remained,  notwithstanding  the  agreement. 
Upon  that  point  only  is  the  judgment  in  that  case  con- 
clusive on  this  court;  upon  that  point  only  is  the  opinion 
of  that  court  authoritative  with  this. 

"This  court,  and  other  courts  organized  under  the  com- 
mon law,  has  never  held  itself  bound  by  any  part  of  an 
opinion,  in  any  case,  which  was  not  needful  to  the  ascer- 
tainment of  the  right  or  title  in  question  between  the  par- 
ties. In  Cohens  v.  The  State  of  Virginia,  6  Wheat.  399, 
this  court  was  much  impressed  with  some  portion  of  its 
opinion  in  the  case  of  Marbury  v.  Madison,  and  Mr.  Chief 
Justice  Marshall  said :  'It  is  a  maxim  not  to  be  disregarded, 
that  general  expressions  in  every  opinion  are  to  be  taken 
in  connection  with  the  case  in  which  those  expressions  ara 
used.  If  they  go  beyond  the  case,  they  may  be  respected, 
but  ought  not  to  control  the  judgment  in  a  subsequent  suit, 
when  the  very  point  is  presented.  The  reason  of  this 
maxim  is  obvious.  The  question  actually  before  the  court 


427  State  ex  rel.  Drake  v,  Doyle. 

is  investigated  with  care,  and  considered  in  its  full  extent ; 
other  principles  which  may  serve  to  illustrate  it  are  con- 
sidered in  their  relation  to  the  case  decided,  but  their  pos- 
sible bearing  on  all  other  cases  is  seldom  completely  inves- 
tigated.' The  cases  of  Ex  parte  Christy,  3  How.  292, 
and  Jenness  et  al.  v.  Peck,  7  id.  612,  are  an  illustration  of 
the  rule  that  any  opinion  given  here  or  elsewhere  cannot  be 
relied  on  as  a  binding  authority,  unless  the  case  called  for 
its  expression.  Its  weight  of  reason  must  depend  on  what 
it  contains."  Carroll  v.  Carroll,  16  How.  275.  The  rule 
is  elementary,  but  we  choose  to  give  it  in  the  words  of  the 
court  to  whose  opinion  we  consider  it  presently  applicable. 

Ins.  Co.  v.  Morse  was  decided  by  a  divided  court.  The 
opinion  of  the  majority,  delivered  by  Mr.  Justice  Hunt, 
applies  to  the  agreement  of  the  insurance  company  not  to 
remove  the  cause  to  a  federal  court,  the  general  and  fami- 
liar rule,  that  parties  cannot  by  contract  oust  the  ordinary 
courts  of  their  jurisdiction;  citing  to  that  effect  several 
cases,  English  and  American;  and  quoting  the  rule  from 
Story's  Eq.,  sec.  670,  in  these  words :  "And  where  the  stip- 
ulation though  not  against  the  policy  of  the  law,  yet  is  an 
effort  to  divest  the  ordinary  jurisdiction  of  the  common 
tribunals  of  justice,  such  as  an  agreement,  in  case  of  any 
disputes,  to  refer  the  same  to  arbitrators,  courts  of  equity 
will  not,  any  more  than  courts  of  law,  interfere  to  enforce 
that  agreement,  but  they  will  leave  the  parties  to  their  own 
good  pleasure  in  regard  to  such  agreements.  The  regular 
administration  of  justice  might  be  greatly  impeded  or  in- 
terfered with  by  such  stipulations,  if  they  were  specifically 
enforced." 

Having  held  the  rule  to  be  otherwise  applicable  to  the 
agreement  of  the  insurance  company,  the  opinion  proceeds 
to  inquire,  whether  the  agreement  gains  validity  from  the 


Opinions  of  Chief  Justice  Ryan.  428 

statute  of  the  state  requiring  it ;  and  holds  that  it  does  not, 
because  the  right  of  removal  is  given  by  the  constitution 
and  laws  of  the  United  States.  And  therefore  the  majority 
of  that  court  reversed  the  judgment  of  this  court,  on  the 
ground  that  the  petition  to  remove  the  cause  to  the  federal 
court  had  ousted  the  jurisdiction  of  the  state  court. 

So  far  the  opinion  deals  with  the  question  involved  in 
the  case.     Having  so  held,  the  opinion  had  exhausted  the 
question  before  the  court;  had  exhausted  its  appellate  ju- 
risdiction to  this  court ;  had  exhausted  its  concern  with  the 
statute  of  the  state.     In  its  own  view  of  he  question  be- 
fore it,  the  only  concern  of  that  court  with  the  statute  of 
the  state  was,  whether  it  could  operate  to  take  the  agree- 
ment out  of  the  general  rule  held  to  be  applicable  to  it. 
The  agreement  was  directly  before  the  court;  the  statute 
at  best  was  only  before  the  court  collaterally.     And  we 
may  be  pardoned  for  suggesting  that,  the  validity  of  the 
statute  not  being  directly  involved  in  the  decision,  the  dec- 
laration that  it  is  unconstitutional  overlooked  the  uni- 
versal rule  of  all  American  courts,  sanctioned  by  that  court 
(Cooper  v.  Telfair,  4  Dallas,  14;  Parsons  v.  Bedford,  3 
Pet.  433 ;  United  States  v.  Coombs,  12  id.  72),  that  courts 
will  avoid  an  interpretation  or  application  of  a  statute 
rendering  it  unconstitutional ;  and  will  hold  one  so  only  in 
plain  and  peremptory  cases.     And  with  the  domestic  pol- 
icy of  the  statute,  with  the  right  of  the  state  to  refuse  li- 
cense to  insurance  companies  refusing  to  make  the  agree- 
ment, that  court  had  no  concern. 

"This  court  has  no  authority  to  revise  the  act  of  (Wis- 
consin) upon  any  grounds  of  justice,  policy,  or  consistency 
to  its  own  constitution.  These  are  concluded  by  the  deci- 
sion of  the  public  authorities  of  the  state.  The  only  in- 
quiry for  this  court  is,  Does  the  act  violate  the  constitution 


429  State  ex  rel.  Drake  v.  Doyle. 

of  the  United  States,  or  the  treaties  and  laws  made  under 
it?"     Carpenter  v.  Pennsylvania,  17  How.  456. 

The  statute  of  the  state  does  not  assume  to  prohibit  in- 
surance companies  taking  license  under  it,  from  removing 
actions  on  its  policies  from  state  to  federal  courts.     It 
only  provides  that  no  insurance  company  shall  be  licensed 
under  it,  which  shall  not  file  an  agreement  not  to  remove 
them.     So  that  the  question  in  Insurance  Co.  v.  Morse, 
was  not  whether  the  statute  was  in  violation  of  the  right  of 
removal,  but  whether  the  voluntary  agreement  of  the  insur- 
ance company  was  obligatory  upon  it.     The  only  question 
upon  the  statute  before  the  court  was,  whether  it  could 
operate  to  give  validity  to  the  agreement,  held  to  be  other- 
wise invalid.     And  it  is  sufficiently  plain  that  the  validity 
of  the  agreement,  and  the  validity  of  the  statute  requiring 
the  agreement,  are  entirely  distinct  questions.    The  invalid- 
ity of  the  agreement  has  been  determined  by  the  court  of 
last  resort  on  the  subject;  but  the  statute  remains.     And 
we  take  it  that  no  provision  in  the  constitution,  laws  or 
treaties  of  the  United  States,  is  violated  by  a  statute  of  the 
state  prohibiting  the  license  of  the  state  to  foreign  corpor- 
ations to  do  business  within  it,  upon  any  condition  what- 
ever.    The  right  of  the  state  to  refuse  such  license  is  abso- 
lute ;  and  being  absolute,  it  may  be  exercised  at  absolute  dis- 
cretion, not  to  be  questioned  or  abridged,  anywhere,  under 
any  pretense.     It  was  within  the  appellate  jurisdiction  of 
the  federal  court  to  refuse  effect  to  the  agreement  as  oust- 
ing the  jurisdiction  of  the  federal  courts;  but  it  is  not 
within  its  jurisdiction  to  hold  foreign  insurance  compa- 
nies entitled  to  license  without  the  agreement.     It  can 
hold  an  insurance  company  not  bound  by  the  agreement 
when  made,  as  repugnant  to  the  constitution  and  laws  of 
the  United  States;  but  it  cannot  excuse  the  agreement 


Opinions  of  Chief  Justice  Ryan.  430 

as  a  condition  precedent  to  license  under  the  state  stat- 
ute. So  far  the  statute  stands  outside  of  its  appellate 
jurisdiction  to  this  court,  raising  a  pure  question  of  state 
policy  and  economy,  in  a  matter  within  the  absolute 
pleasure  of  the  state.  Conceding  the  invalidity  of  the 
agreement,  the  statute  still  prohibits  license,  within  the 
mere  discretion  of  the  state,  without  the  agreement,  and 
the  statutory  license  cannot  issue  without  it.  In  authoriz- 
ing voluntary  licenses,  with  absolute  right  to  annex  any 
condition  to  them,  the  state  may  exact  agreements  morally 
although  not  legally  binding  on  the  licensees.  It  may  be 
presumed  there  is  some  sense  of  decency  even  among  corpo- 
rations. It  may  be  presumed  that  not  every  insurance  com- 
pany will  voluntarily  make  such  an  agreement,  as  a  condi- 
tion of  a  voluntary  and  advantageous  license,  and  then  de- 
liberately violate  it,  even  with  the  sanction  of  the  supreme 
court  of  the  United  States.  In  any  view,  such  a  violation 
is  a  scandalous  breach  of  good  faith,  indicating  a  dispo- 
sition to  bad  faith  in  all  the  dealings  of  the  company. 
And,  though  the  agreement  be  not  obligatory  in  law,  yet  has 
the  state  a  right  to  trust  to  it,  as  obligatory  in  conscience, 
and  to  refuse  licenses  to  all  insurance  companies  refusing 
to  execute  it.  In  that  view  of  it,  the  federal  court  has  no 
appellate  jurisdiction  to  this,  court  over  the  statute,  and 
the  declaration  that  it  is  unconstitutional  was  brutum  ful- 
men.  To  that  extent  at  least,  the  state  retains  power  over 
foreign  corporations  seeking  to  do  business  within  it.  The 
statute  is  indeed  inoperative  to  give  validity  to  the  agree- 
ment, ousting  the  jurisdiction  of  the  federal  courts.  So 
the  supreme  court  of  the  United  States  has  decided.  But 
it  is  operative  to  prescribe  the  conditions  on  which  the 
state,  in  the  exercise  of  its  sovereign  authority,  sees  fit  to 
license  foreign  corporations  within  it.  That  is  for  this 


431  State  ex  rel.  Drake  v.  Doyle. 

court,  not  that,  to  determine.  !N~o  foreign  insurance  com- 
pany need  come  here  under  the  agreement;  coming,  every 
foreign  insurance  company  violating  the  agreement  is 
guilty  of  a  moral  fraud  upon  the  state.  And,  in  upholding 
the  statute  to  this  extent,  against  the  extrajudicial  dictum, 
of  the  supreme  court  of  the  United  States,  we  may  quote  in 
our  own  hehalf  the  language  of  one  of  the  great  chief  jus- 
tices of  that  court:  "A  sanction  is  claimed  to  a  breach  of 
trust,  and  a  violation  of  moral  principle.  In  such  a  case, 
the  mind  submits  reluctantly  to  the  rule  of  law,  and  labo- 
riously searches  for  something  which  shall  reconcile  that 
rule  with  what  would  seem  to  be  the  dictate  of  abstract 
justice."  Hannay  v.  Eve,  3  Cranch,  242. 

The  provision  in  sec.  22  of  ch.  56  of  1870,  requiring 
the  agreement  as  a  condition  of  license,  was  alone  before 
the  court  in  Insurance  Co.  v.  Morse.  And  so  far  we 
have  considered  it  by  itself.  But  this  writ  is  applied  for, 
not  under  that  section,  but  under  ch.  64  of  1872.  And  the 
two  statutes  taken  together  put  the  whole  subject  in  a  view 
which  was  not  before  the  court  in  that  case,  and  could  not 
properly  be  in  any  case  of  its  appellate  jurisdiction  to  a 
state  court.  The  former  statute  requires  the  agreement; 
the  latter  statute  provides  for  the  revocation  of  any  license 
issued,  upon  violation  of  the  agreement.  And,  the  agree- 
ment being  invalid  to  oust  the  jurisdiction  of  the  federal 
courts,  the  two  provisions  together  are  equivalent  to  one  re- 
quiring the  revocation  of  a  license  issued  to  a  foreign  in- 
surance company  upon  its  application  to  remove  an  action 
on  its  policy  from  a  state  to  a  federal  court 

The  statute  extended  to  these  foreign  insurance  compan- 
ies the  privilege  of  doing  business  in  this  state  on  equal 
footing  with  domestic  companies.  Experience  showed  their 
power  to  harass  the  citizens  of  the  state  doing  business 


Opinions  of  Chief  Justice  Ryan.  432 

with  them,  by  removing  actions  on  their  policies  from 
courts  of  the  vicinage  to  distant  and  expensive  tribunals. 
Hence  the  provisions  of  both  statutes.  And,  conceding  to 
the  fullest  extent  the  right  of  removal  of  actions  com- 
menced, we  can  see  no  pretense  for  questioning  the  power 
of  the  state,  in  the  exercise  of  its  absolute  discretion  on  the 
subject,  to  revoke  the  license  of  a  company  exercising  the 
right.  The  state  has  power  to  make  its  voluntary  license 
subject  to  forbearance  of  a  right,  and  revocable  upon  its 
exercise.  The  right  may  survive  the  license,  but  the  li- 
cense cannot  survive  its  exercise.  So  grants  are  sometimes 
made  upon  condition  to  forbear  a  right.  It  was  for  the 
authorities  of  the  state  alone  to  judge  that  the  exercise  of 
the  right  is  an  abuse  of  the  privilege  of  the  license.  With 
that  question  federal  courts  have  no  concern.  They  can 
hold,  as  they  have,  that  the  right  exists  in  pending  actions, 
but  they  have  no  jurisdiction  over  the  question  whether 
foreign  corporations,  exercising  the  right,  shall  be  per- 
mitted by  the  state  to  do  business  within  it.  That  is  mat- 
ter of  state  policy,  state  law,  state  jurisdiction. 

The  distinction  between  the  validity  of  the  agreement, 
and  the  validity  of  the  statute,  is  readily  illustrated.  It 
is  quite  clear  that  the  secretary  of  state  takes  no  authority, 
under  the  statute,  to  license  a  foreign  insurance  company 
not  executing  the  agreement.  That  is  a  condition  prece- 
dent to  his  authority.  This  court  would  assuredly  refuse 
to  compel  him  to  act  in  disregard  of  the  statute  which  con- 
fers his  authority.  And  we  take  it  that  the  supreme  court 
of  the  United  States  would  hardly  claim  appellate  juris- 
diction to  review  our  decision,  or  to  compel  a  state  officer 
to  act  officially  for  the  state,  in  disregard  of  the  letter  of 
his  authority,  on  the  ground  that  the  agreement,  when  exe- 
cuted, is  inoperative  to  oust  the  jurisdiction  of  the  federal 
court. 


433  State  ex  rel.  Drake  v.  Doyle. 

We  have  hitherto  considered  the  agreement  in  the  light 
in  which  it  is  held  by  the  opinion  in  Ins.  Co.  v.  Morse. 
But,  with  great  deference,  we  are  unable  to  consider  the 
construction  of  the  agreement  there  expressed  to  be  correct, 
even  within  the  views  of  the  court  itself.  It  is  held  to  be 
repugnant  to  the  constitution  and  laws  of  the  United  States. 
But  an  agreement  not  to  remove  a  cause  from  a  state  to  a 
federal  court,  though  it  will  not  be  enforced  as  obligatory 
against  removal,  does  not  appear  to  be  in  itself  repugnant 
to  any  law.  The  party  may  keep  in  good  faith,  without 
offense  against  the  law.  Courts  will  not  indeed  enforce 
it;  but,  in  the  language  of  Judge  Story,  leave  the  parties 
to  their  own  good  pleasure  in  regard  to  it.  Had  the  in- 
surance company,  in  that  case,  complied  with  the  agree- 
ment and  not  removed  the  cause,  it  would  have  been  guilty 
of  no  violation  of  the  constitution  or  laws  of  the  United 
States.  In  the  view  taken  of  it  by  the  supreme  court,  it 
is  ineffectual  but  not  illegal.  We  have  seen  no  case  hold- 
ing such  an  agreement  illegal,  though  it  has  been  sometimes 
called  nugatory.  In  the  leading  case  of  Kill  v.  Hollister, 
1  Wilson,  129,  it  was  held  that  an  agreement  to  arbitrate 
did  not  bar  the  action,  because  there  had  been  no  submis- 
sion under  it;  the  court  intimating  that  a  submission  un- 
der it  would  have  been  a  bar.  And  it  has  been  held  that, 
though  such  an  agreement  will  not  defeat  an  action  brought 
under  it,  yet  an  action  will  lie  on  it  for  breach  of  it.  Liv- 
ingstone v.  Ralli,  5  Ellis  &  Bl.  132.  See  also  Nute  v. 
Ins.  Co.,  6  Gray,  174;  Hobbs  v.  Ins.  Co.,  56  Me.  417. 

It  appears  to  us  to  be  very  plain  that  the  statute  of  1870 
is  a  valid  enactment ;  that  its  validity  was  not  involved  in 
the  decision  of  Ins.  Co.  v.  Morse ;  that  its  validity,  as  a  limi- 
tation upon  the  issue  of  licenses  under  state  authority,  was 
not  within  the  appellate  jurisdiction  of  the  court ;  and  that 
28 


Opinions  of  Chief  Justice  Ryan.  434 

the  declaration  in  the  opinion  that  it  is  repugnant  to  the 
constitution  and  laws  of  the  United  States  and  therefore 
void,  is  but  an  improvident  and  erroneous  expression  of 
the  learned  judge  who  delivered  the  opinion.  With  all  due 
deference,  we  may  be  permitted  to  say  of  it  what  Lord 
Mansfield  said  of  a  dictum  of  Chief  Justice  Holt:  "That 
is  an  obiter  saying  only;  and  not  a  resolution  or  determi- 
nation of  the  court,  or  a  direct  solemn  opinion  of  the  great 
judge  from  whom  it  dropped."  Saunderson  v.  Howies,  4 
Burr.  2064. 

The  opinion  proceeds  to  discuss  the  relations  of  foreign 
corporations  to  the  state,  in  a  scope  wholly  foreign  to  the 
judgment  in  the  case,  and  in  a  tone  inconsistent  with  de- 
cided cases  in  that  court ;  and  therefore,  so  far,  of  no  au- 
thority there  or  here.  It  is  sufficient  for  this  case  that 
that  great  tribunal  has  frequently  and  uniformly  held  that 
the  corporations  of  one  state  have  no  right  to  migrate  to 
another,  there  to  exercise  their  franchises,  except  upon  the 
assent  of  such  other  state ;  and  that  such  assent  may  be 
granted  upon  such  terms  and  conditions  as  the  state  grant- 
ing it  may  think  proper  to  impose.  Ins.  Co.  v.  French, 
18  How.  404;  Paul  v.  Virginia,  8  Wall.  168;  Ducat  v. 
Chicago,  18  id.  410;  Ins.  Co.  v.  Massachusetts,  id.  566; 
Osborn  v.  Mobile,  16  id.  479. 

Paul  v.  Virginia  was  the  case  of  an  insurance  company 
of  New  York,  doing  business  in  Virginia,  under  a  statute 
of  the  latter  state  prohibiting  foreign  insurance  companies 
from  doing  business  there  without  license  to  be  granted 
.upon  conditions  precedent.  It  was  decided  as  late  as  1868. 
And  the  court  uses  this  language : 

"The  corporation,  being  the  mere  creation  of  local  law, 
can  have  no  legal  existence  beyond  the  limits  of  the  sov- 
ereignty where  created.  As  said  by  this  court  in  Bank  of 


435  State  ex  ret.  Drake  v.  Doyle. 

Augusta  v.  Earle,  'It  must  dwell  in  the  place  of  its  cre- 
ation, and  cannot  migrate  to  another  sovereignty.'  The 
recognition  of  its  existence  even  by  other  states,  and  the 
enforcement  of  its  contracts  made  therein,  depend  purely 
upon  the  comity  of  those  states — a  comity  which  is  never 
extended  where  the  existence  of  the  corporation  or  the  ex- 
ercise of  its  powers  are  prejudicial  to  their  interests  or  re- 
pugnant to  their  policy.  Having  no  absolute  right  of 
recognition  in  other  states,  but  depending  for  such  recog- 
nition and  the  enforcement  of  its  contracts  upon  their 
assent,  it  follows,  as  a  matter  of  course,  that  such  assent 
may  be  granted  upon  such  terms  and  conditions  as  those 
states  may  think  proper  to  impose.  They  may  exclude  the 
foreign  corporation  entirely;  they  may  restrict  its  busi- 
ness to  particular  localities ;  or  they  may  exact  such  secu- 
rity for  the  performance  of  its  contracts  with  their  citizens 
as  in  their  judgment  will  best  promote  the  public  interest. 
The  whole  matter  rests  in  their  discretion."  And  this 
doctrine  is  expressly  affirmed  in  Ducat  v.  Chicago,  a  like 
case  in  1870. 

The  doctrine  is  so  sound  in  itself,  and  so  many  of  the 
decisions  of  that  court  on  other  subjects  would  be  disturbed 
or  subverted  by  a  departure  from  it,  that  we  feel  safe  in 
holding  it  to  be  the  settled  law  of  the  federal  supreme 
court,  notwithstanding  intimations  to  the  contrary  in  the 
opinion  in  Ins.  Co.  v.  Morse ;  another  reason  for  regarding 
these  as  not  sufficiently  considered,  as  is  apt  to  be  the  case 
with  all  obiter  dicta. 

V.  But  if  we  should  be  mistaken  in  all  this,  if  the  pro- 
vision of  the  statute  of  1870  requiring  the  agreement,  be 
unconstitutional,  there  is  another  view  of  the  case  in  our 
judgment  conclusive  of  it. 

Morse  v.  Ins.  Co.  was  decided  in  1874,  and  reported 


Opinions  of  Chief  Justice  Ryan.  436 

in  1875.  The  legislature  of  the  state  has  since  been  in 
session.  And  there  is  no  doubt  that  their  attention  was 
called  to  the  decision.  Yet,  though  they  have  since  en- 
acted at  least  one  statute,  ch.  300  of  1876,  amending  the 
general  insurance  laws,  they  have  not  repealed  or  modi- 
fied the  provision  requiring  the  agreement.  This  is  a 
strong  confirmation  of  our  view,  derived  from  the  statute 
itself  and  its  history,  that  the  legislature  would  not  have 
adopted  or  retained  the  statute  authorizing  licenses  to 
foreign  insurance  companies,  without  the  provision  for  the 
agreement.  It  is  not  an  independent  provision,  to  fall 
by  itself.  The  other  provisions  of  the  statute  in  regard  to 
license  cannot  be  executed  independently  of  it.  It  was 
evidently  designed  as  a  compensation  for  the  provisions 
authorizing  licenses,  an  inducement  to  them.  And  it  is 
the  settled  doctrine  of  this  court  that,  if  it  be  unconstitu- 
tional, the  whole  statute  authorizing  licenses  to  foreign  in- 
surance companies  is  unconstitutional.  Slauson  v.  Ra- 
cine, 13  Wis.  398 ;  Lynch  v.  The  "Economy,"  27  id.  69 ; 
State  v.  Dousman,  28  id.  541. 

In  that  view  of  the  statute,  no  license  'to  foreign  in- 
surance companies  would  be  authorized  by  law;  the  secre- 
tary of  state  would  have  acted  without  color  of  authority 
in  issuing  the  license  in  question;  the  license  would  give 
no  color  of  right  to  the  insurance  company  to  do  business 
within  the  state;  and  it  would  be  our  undoubted  duty  to 
compel  the  secretary  to  undo  an  ofiicial  act,  done  with 
authority,  an  infringement  upon  the  prerogatives  of  the 
state,  and  a  usurpation  of  the  sovereign  authority. 

VI.  The  return  pleads  in  bar  of  the  peremptory  writ, 
an  inj  unction  of  the  circuit  court  of  the  United  States  for 
the  western  district  of  Wisconsin,  issued  upon  a  bill  filed 
in  that  court  by  the  insurance  company  against  the  sec- 


437  State  ex  rel.  Drake  v.  Doyle. 

retary  of  state,  restraining  that  officer  from  revoking  the 
license  of  the  state  to  the  insurance  company.  And  the 
brief  of  the  attorney  general  takes  the  position,  that  the 
federal  court  had  jurisdiction  of  the  bill,  and  that  juris- 
diction of  the  subject  matter  having  first  attached  in  that 
court,  the  jurisdiction  of  that  court  is  exclusive  of  the 
jurisdiction  of  this. 

Upon  the  application  to  us  for  the  alternative  writ, 
the  learned  counsel  for  the  relator  made  a  statement,  re- 
peated on  both  arguments  without  contradiction,  which 
has  left  a  very  painful  impression  on  our  minds.  He 
stated  that  as  early  as  July,  1875,  the  petition  for  the 
alternative  writ  was  filed,  and  the  writ  issued,  and  we 
think  served,  in  one  of  the  circuit  courts  of  this  state ;  and 
that,  upon  the  suggestion  of  the  attorney  general  in  Sep- 
tember, that  the  petition  should,  for  convenience,  be  with- 
drawn from  that  court  and  immediately  filed  in  this,  the 
relator's  counsel  assented,  withdrew  the  petition  from  the 
circuit  court,  and  sent  it  to  the  attorney  general  to  be  at 
once  filed  in  this  court  according  to  the  suggestion;  that 
the  relator's  counsel  understood  it  to  be  so  filed  here,  and 
the  alternative  writ  issued;  that  it  was  not  so  filed;  but 
that  in  the  meantime  the  proceeding  was  taken  and  the 
injunction  issued  in  the  federal  court,  of  which  the  rela- 
tor's counsel  had  no  notice.  It  does  not  appear  by  the 
record  of  the  proceeding  annexed  to  the  return,  that  the 
secretary  of  state  or  the  attorney  general  appeared  in  the 
federal  court  or  made  any  objection  to  the  injunction.  In- 
deed, the  record  implies  that  there  was  no  such  appear- 
ance or  objection.  As  the  facts,  except  perhaps  the  last, 
do  not  appear  of  record,  we  are  without  power  to  act  upon 
them;  but,  if  they  are  correctly  stated,  the  present  objec- 
tion to  our  jurisdiction  to  issue  the  writ,  appears  to  us  to 


Opinions  of  Chief  Justice  Ryan.  438 

come  with  an  ill  grace  from  the  chief  law  officer  of  the 
state.  For  it  would  be  a  grave  encroachment  upon  the 
sovereign  authority  of  the  state,  if  state  officers  could  so 
transfer  judicial  control  over  their  official  action  for  the 
state,  and  the  prerogative  jurisdiction  of  this  court,  to  an 
inferior  federal  court.  But  it  is  quite  certain  that  the 
federal  court  has  not  jurisdiction  to  bind  the  state,  or  to 
foreclose  the  authority  of  the  state  courts,  on  behalf  of 
the  state,  over  its  own  officers,  in  their  duty  to  it,  under  its 
own  laws. 

As  originally  adopted,  the  federal  constitution  extended 
the  judicial  power  of  the  United  States  to  controversies 
"between  a  state  and  citizens  of  another  state,"  vesting  in 
the  supreme  court  of  the  United  States  original  jurisdiction 
in  all  cases  "in  which  a  state  shall  be  a  party."  This 
grant  of  original  jurisdiction,  in  such  cases,  to  that  great 
court,  appears  to  have  been  considered  exclusive.  Fed- 
eralist No.  80;  Story's  Const,  sec.  1682;  1  Kent,  298; 
Georgia  v.  Brailsford,  2  Dallas,  415 ;  Cohens  v.  Virginia, 
6  Wheat.  264. 

The  jurisdiction  was  probably  intended  'to  apply  only 
to  cases  in  which  a  state  should  be  plaintiff.  But  it  was 
held  to  embrace  all  controversies  between  states,  whether 
plaintiffs  or  defendants,  and  citizens  of  other  states,  so  far 
reducing  a  sovereign  state  to  the  condition  of  a  private 
corporation.  Chisholm  v.  Georgia,  2  Dallas,  419.  This 
was  probably  a  surprise,  certainly  an  offense,  to  most — if 
not  all — of  the  states.  Says  Chancellor  Kent: 

"The  judicial  power,  as  it  originally  stood,  extended 
to  suits  prosecuted  against  one  of  the  United  States  by 
citizens  of  another  state,  or  by  citizens  or  subjects  of  any 
foreign  state;  but  the  states  were  not  willing  to  submit 
to  be  arraigned  as  defendants  before  the  federal  courts  at 


439  State  ex  rel.  Drake  v.  Doyle. 

the  instance  of  private  persons,  be  the  cause  of  action  what 
it  might.  The  decision  of  the  supreme  court  of  the  United 
States  in  the  case  of  Chisholm  v.  The  State  of  Georgia, 
decided  in  1793,  in  which  it  was  adjudged  that  a  state  was 
suable  by  citizens  of  another  state,  gave  much  dissatis- 
faction, and  the  legislature  of  Georgia  carried  their  oppo- 
sition to  open  defiance  of  the  judicial  authority.  The  in- 
expendiency  of  the  power  appeared  so  great,  that  congress, 
in  1794,  proposed  to  the  state  an  amendment  to  that  part 
of  the  constitution,  and  it  was  subsequently  amended  in 
this  particular,  under  the  provision  in  the  fifth  article." 
1  Kent,  296. 

The  amendment  is  in  these  words :  "The  judicial  power 
of  the  United  States  shall  not  be  construed  to  extend  to 
any  suit  in  law  or  equity,  commenced  or  prosecuted  against 
one  of  the  United  States  by  citizens  of  another  state,  or 
by  citizens  or  subjects  of  any  foreign  state." 

The  manifest  object  of  the  amendment  was  to  preclude 
the  federal  courts  from  jurisdiction  over  a  state,  in  any 
case,  at  the  suit  of  private  parties.  And  by  all  rules  of 
construction,  the  prohibition  should  apply  to  all  cases  in 
which  the  interest  of  a  state  is  so  concerned  that  it  ought 
otherwise  to  be  a  party.  But  the  intent  and  letter  of  the 
amendment  have  been  greatly  narrowed  by  the  effect  given 
to  it  by  the  decisions  of  the  supreme  court  of  the  United 
States. 

The  constitution  designed  that  court  to  be,  as  it  is,  a 
great  national  tribunal;  a  court  of  last  resort  on  all  ques- 
tions of  national  character;  and  a  court  of  dignity  and 
authority  unequaled  by  any  tribunal  known  in  modern 
history,  not,  perhaps,  excepting  the  imperial  chamber  at 
Wetzlar,  to  which  it  has  been  compared.  Federalist  ^o. 
80;  Story's  Const,  sec.  1679;  1  Kent,  296.  And  yet, 


Opinions  of  Chief  Justice  Ryan.  440 

that  august  tribunal  has  no  general  jurisdiction,  but  is  es- 
sentially a  court  of  denned  and  limited  jurisdiction,  origi- 
nal and  appellate.  We  speak  with  profound  deference 
to  that  court,  in  saying  that  it  should  be  matter  of  surprise 
to  no  jurist,  to  no  student  of  history,  that  so  august  a 
tribunal,  so  constituted  and  limited,  should  have  from  the 
beginning  proved  impatient  of  the  limited  scope  of  its 
own  authority,  and  that  of  the  inferior  federal  courts  on 
which  its  own  jurisdiction  chiefly  rests;  gradually  and 
sometimes  almost  insensibly  extending  it,  and  signally  il- 
lustrating the  maxim,  ampliare  jurisdictionem.  Its  views 
of  federal  jurisdiction  have  always  been  aggressive.  It 
has  but  illustrated  a  general  human  tendency,  a  common 
phase  of  judicial  history,  in  gradually  enlarging  the  letter 
of  its  jurisdiction  by  construction,  until  its  jurisdiction 
by  implication  appears  to  exceed  its  jurisdiction  by  ex- 
press grant;  until  it  appears  to  be  loaded  down  and  im- 
peded, we  might  almost  say  overwhelmed,  by  excess  of 
jurisdiction,  presumably  never  contemplated  by  the  fram- 
ers  of  the  constitution. 

And  it  was,  perhaps,  hardly  to  be  expected  that  an 
amendment  to  the  constitution,  abolishing  a  jurisdiction 
originally  granted  by  that  instrument  to  federal  courts, 
would  be  kindly  regarded  by  so  great  a  court  so  consti- 
tuted, or  favorably  construed  for  the  prohibition  and 
against  the  jurisdiction.  So  it  has  surely  proved. 

The  amendment  appears  to  have  been  first  before  the 
court  in  Hollingsworth  v.  Virginia,  3  Dall.  378.  The 
question  was,  the  effect  of  the  amendment  upon  pending 
suits.  And  the  court  "delivered  an  unanimous  opinion, 
that,  the  amendment  being  constitutionally  adopted,  there 
could  not  be  exercised  any  jurisdiction  in  any  case,  past 
or  future,  in  which  a  state  was  sued  by  the  citizens  of  an- 


441  State  ex  rel.  Drake  v,  Doyle. 

other  state,  or  by  citizens  or  subjects  of  any  foreign  state." 
But  a  few  years  later,  in  a  cause  in  which  a  state  claimed 
an  interest  but  was  not  a  party,  the  court  used  this  lan- 
guage: 

"The  right  of  a  state  to  assert,  as  plaintiff,  any  interest 
it  may  have  in  a  subject  which  forms  the  matter  of  con- 
troversy between  individuals  in  one  of  the  courts  of  the 
United  States,  is  not  affected  by  this  amendment ;  nor  can 
it  be  so  construed  as  to  oust  the  court  of  its  jurisdiction, 
should  such  claim  be  suggested.     The  amendment  simply 
provides,  that  no  suit  shall  be  commenced  or  prosecuted 
against  a  state.     The  state  cannot  be  made  a  defendant  in 
a  suit  brought  by  an  individual;  but  it  remains  the  duty 
of  the  courts  of  the  United  States  to  decide  all  cases 
brought  before  them  by  citizens  of  one  state  against  citi- 
zens of  a  different  state,  where  a  state  is  not  necessarily 
a  defendant.     In  this  case,  the  suit  was  not  instituted 
against  the  state  or  its  treasurer,  but  against  the  execu- 
trixes of  David  Rittenhouse,  for  the  proceeds  of  a  vessel 
condemned  in  the  court  of  admiralty,  which  were  admit- 
ted to  be  in  their  possession.     If  the  proceeds  had  been 
the  actual  property  of  Pennsylvania,  however  wrongfully 
acquired,  the  disclosure  of  that  fact  would  have  presented 
a  case  on  which  it  was  unnecessary  to  give  an  opinion; 
but  it  certainly  can  never  be  alleged,  that  a  mere  sugges- 
tion of  title  in  a  state  to  property,  in  possession  of  an  in- 
dividual, must  arrest  the  proceedings  of  the  court,  and 
prevent  their  looking  into  the  suggestion,  and  examining 
the  validity  of  the  title."     United  States  v.  Peters,  5 
Cranch,  115.     It  will  be  presently  seen  that  the  suggestion 
here  thrown  out  is  the  seed  of  great  growth  of  jurisdiction, 
inconsistent  with  the  spirit  of  the  amendment,  if  not  with 
its  letter. 


Opinions  of  Chief  Justice  Ryan.  442 

The  amendment  appears  to  have  next  come  before  the 
court  in  Cohens  v.  Virginia,  6  Wheat.  264.  The  state 
had  prosecuted  the  plaintiffs  in  error  criminally  in  one  of 
her  courts,  and  there  was  judgment  of  conviction  against 
them.  They  sued  out  a  writ  of  error  from  the  federal  su- 
preme court  to  the  state  court,  against  the  state ;  the  state 
being  defendant  in  error  in  that  court.  Notwithstanding 
the  amendment,  the  court  claimed  jurisdiction  of  the 
cause,  upon  the  ground  that  such  a  proceeding  was  not  a 
suit  within  the  meaning  of  the  amendment,  though  it  sub- 
jected the  state  to  a  judgment  in  that  court,  at  the  suit 
of  a  private  party.  And  the  court  has  hitherto  adhered 
to  that  rule  in  numerous  cases. 

In  Osborn  v.  U.  S.  Bank,  9  Wheat.  V38,  the  court  thus 
states  the  question :  "The  direct  interest  of  the  state  in  the 
suit,  as  brought,  is  admitted;  and,  had  it  been  in  the 
power  of  the  bank  to  make  it  a  party,  perhaps  no  decree 
ought  to  have  been  pronounced  in  the  cause,  until  the 
state  was  before  the  court.  But  this  was  not  in  the  power 
of  the  bank.  The  eleventh  amendment  of  the  constitution 
has  exempted  a  state  from  the  suit  of  citizens  of  other 
states  or  aliens;  and  the  very  difficult  question  is  to  be 
decided,  whether,  in  such  a  case,  the  court  may  act  upon 
the  agents  employed  by  the  state,  and  on  the  property  in 
their  hands."  And  the  court  thus  states  its  conclusion: 
"It  may,  we  think,  be  laid  down  as  a  rule  which  admits 
of  no  exception,  that  in  all  cases  where  jurisdiction  de- 
pends on  the  party,  it  is  the  party  named  in  the  record. 
Consequently,  the  eleventh  amendment,  which  restrains 
the  jurisdiction  granted  by  the  constitution  over  suits 
against  states,  is,  of  necessity,  limited  to  those  suits  in 
which  a  state  is  a  party  on  the  record.  The  amendment 
has  its  full  effect,  if  the  constitution  be  construed  as  it 


443  State  ex  ret.  Drake  v.  Doyle. 

would  have  been  construed  had  the  jurisdiction  of  the 
court  never  been  extended  to  suits  brought  against  a  state 
by  the  citizens  of  another  state,  or  by  aliens.  The  state 
not  being  a  party  on  the  record,  and  the  court  having  juris- 
diction over  those  who  are  parties  on  the  record,  the  true 
question  is,  not  one  of  jurisdiction,  but  whether,  in  the 
exercise  of  its  jurisdiction,  the  court  ought  to  make  a 
decree  against  the  defendants;  whether  they  are  to  be 
considered  as  having  a  real  interest,  or  as  being  only  nom- 
inal parties."  The  court  then  proceeds  to  show  that  the 
officers  of  the  state,  who  were  the  parties  to  the  record, 
were  personally  liable  to  the  bank,  and  therefore  had  a 
real,  personal  interest,  under  the  state  indeed,  but  distinct 
from  the  interest  of  the  state;  and  upon  that  ground  up- 
held the  decree  against  them. 

This  is  the  leading  case  upon  the  subject.  And  it  is 
very  distinguishable  from  the  case  before  us,  in  which  the 
secretary  of  state  has  no  interest  whatever;  is  a  mere 
nominal  party,  the  state  alone  having  the  whole  interest 
in  the  subject;  a  mere  shadow  of  the  state,  set  up  for  jur- 
isdiction against  the  body,  over  which  jurisdiction  is  pro- 
hibited by  the  constitution. 

The  next  case  which  we  find  is  Governor  of  Georgia  v. 
Madrazo,  1  Pet.  110.  That  was  a  case  in  admiralty,  in. 
which  the  governor  of  the  state  intervened  in  behalf  of 
the  state.  And  the  court  uses  this  language: 

"Previous  to  the  adoption  of  the  llth  amendment  to  the 
constitution,  it  was  determined  that  the  judicial  power  of 
the  United  States  extended  to  a  case  in  which  a  state  was 
a  party  defendant.  This  principle  was  settled  in  the  case 
of  Chisholm  v.  Georgia,  2  Dal.  419.  In  that  case,  the 
state  appears  to  have  been  nominally  a  party  on  the  rec- 
ord. In  the  case  of  Hollingsworth  v.  Virginia,  also,  in  3- 


Opinions  of  Chief  Justice  Ryan.  444 

Dal.  378,  the  state  was  nominally  a  party  on  the  record. 
In  the  case  of  Georgia  v.  Brailsford,  2  Dal.  402,  the  bill 
was  filed  by  his  excellency  Edward  Telfair,  Esq.,  governor 
and  commander-in-chief  in  and  over  the  state  of  Georgia, 
in  behalf  of  the  said  state.  ~No  objection  was  made  to  the 
jurisdiction  of  the  court,  and  the  case  was  considered  as 
one  in  which  the  supreme  court  had  original  jurisdiction, 
because  a  state  was  a  party.  In  the  case  of  New  York  v. 
Connecticut,  4  Dal.  3,  both  states  were  nominally  parties 
on  the  record.  "No  question  was  raised  in  any  of  the  cases 
respecting  the  style  in  which  a  state  should  sue  or  be  sued ; 
and  the  presumption  is  that  the  actions  were  admitted  to 
be  properly  brought.  In  the  case  of  Georgia  v.  Brails- 
ford,  the  action  is  not  in  the  name  of  the  state,  but  it  is 
brought  by  its  chief  magistrate  in  behalf  of  the  state.  The 
bill  itself  avows  that  the  state  is  the  actor,  by  its  governor. 

"There  is,  however,  no  case  in  which  a  state  has  been 
sued  without  making  it  nominally  a  defendant. 

"Fowler  et  al.  v.  Lindsey  et  al.,  3  Dal.  411,  was  a  case 
in  which  an  attempt  was  made  to  restrain  proceedings  in 
a  cause  depending  in  a  circuit  court ;  on  the  allegation  that 
a  controversy  respecting  soil  and  jurisdiction  of  two  states 
had  occurred  in  it. 

"The  court  determined  that,  a  state  not  being  a  party 
•on  the  record,  nor  directly  interested,  the  circuit  court 
ought  to  proceed  in  it.  In  the  United  States  v.  Peters, 
the  court  laid  down  the  principle,  that  although  the  claims 
of  a  state  may  be  ultimately  affected  by  the  decision  of  a 
cause,  yet  if  the  state  be  not  necessarily  a  defendant,  the 
courts  of  the  United  States  are  bound  to  exercise  juris- 
diction. 

"In  the  case  of  Osborn  v.  The  Bank  of  the  United 
States,  9  Wheat.  738,  this  question  was  brought  more  di- 


445  State  ex  rel.  Drake  u.  Doyle. 

rectly  before  the  court.  It  was  argued  with  equal  zeal 
and  talent,  and  decided  on  great  deliberation.  In  that 
case,  the  auditor  and  treasurer  of  the  state  were  defend- 
ants, and  the  title  of  the  state  itself  to  the  subject  in  con- 
test was  asserted.  In  that  case,  the  court  said:  'It  may, 
we  think,  be  laid  down  as  a  rule  which  admits  of  no  excep- 
tion, that  in  all  cases  where  jurisdiction  depends  on  the 
party,  it  is  the  party  named  in  the  record.'  The  court 
added :  'The  state  not  being  a  party  on  the  record,  and  the 
court  having  jurisdiction  over  those  who  are  parties  on 
the  record,  the  true  question  is  not  one  of  jurisdiction, 
but  whether,  in  the  exercise  of  its  jurisdiction,  the  court 
ought  to  make  a  decree  against  the  defendants;  whether 
they  are  to  be  considered  as  having  a  real  interest,  or  as 
being  only  nominal  parties.' 

"The  information  of  the  governor  of  Georgia  professes 
to  be  filed  on  behalf  of  the  state,  and  is  in  the  language  of 
the  bill  filed  by  the  governor  of  Georgia  on  behalf  of  the 
state  against  Brailsford. 

"If,  therefore,  the  state  was  properly  considered  as  a 
party  in  that  case,  it  may  be  considered  as  a  party  in  this. 

"The  bill  of  Madrazo  alleges  that  the  slaves  which  he 
claims,  'were  delivered  over  to  the  government  of  the 
state  of  Georgia,  pursuant  to  an  act  of  the  general  assem- 
bly of  the  said  state,  carrying  into  effect  an  act  of  con- 
gress of  the  United  States,  in  that  case  made  and  pro- 
vided ;  a  part  of  the  said  slaves  sold,  as  permitted  by  said 
act  of  congress,  and  as  directed  by  an  act  of  the  general 
assembly  of  the  said  state ;  and  the  proceeds  paid  into  the 
treasury  of  the  said  state,  amounting  to  thirty-eight  thou- 
sand dollars  or  more.' 

"The  governor  appears,  and  files  a  claim  on  behalf  of 
the  state,  to  the  slaves  remaining  unsold,  and  to  the  pro- 


Opinions  of  Chief  Justice  Ry^n.  446 

ceeds  of  those  which  are  sold.  He  states  the  slaves  to  be 
in  possession  of  the  executive,  under  the  act  of  the  legisla- 
ture of  Georgia,  made  to  give  effect  to  the  act  of  congress 
on  the  subject  of  negroes,  mulattoes  or  people  of  color, 
brought  illegally  into  the  United  States ;  and  the  proceeds 
of  those  sold  to  have  been  paid  in  the  treasury,  and  to  be 
no  longer  under  his  control. 

"The  case  made,  in  both  the  libel  and  claim,  exhibits  a 
demand  for  money  actually  in  the  treasury  of  the  state, 
mixed  up  with  its  general  funds,  and  for  slaves  in  posses- 
sion of  the  government.  It  is  not  alleged,  nor  is  it  the 
fact,  that  this  money  has  been  brought  into  the  treasury, 
or  these  Africans  into  the  possession  of  the  executive,  by 
any  violation  of  an  act  of  congress.  The  possession  has 
been  acquired  by  means  which  it  was  lawful  to  employ. 

"The  claim  upon  the  governor  is  as  a  governor;  he  is 
sued  not  by  his  name,  but  by  his  title.  The  demand  made 
upon  him,  is  not  made  personally,  but  officially.  The  de- 
cree is  pronounced  not  against  the  person,  but  the  officer, 
and  appeared  to  have  been  pronounced  against  the  succes- 
sor of  the  original  defendant ;  as  the  appeal  "bond  was  exe- 
cuted by  a  different  governor  from  him  who  filed  the  in- 
formation. In  such  a  case,  where  the  chief  magistrate 
of  a  state  is  sued,  not  by  his  name,  but  by  his  style  of  of- 
fice, and  the  claim  made  upon  him  is  entirely  in  his  official 
character,  we  think  the  state  itself  may  be  considered  as  a 
party  on  the  record.  If  the  state  is  not  a  party,  there  is 
no  party  against  whom  a  decree  can  be  made.  No  per- 
son in  his  natural  capacity  is  brought  before  the  court  as 
defendant.  This  not  being  a  proceeding  against  the  thing, 
but  against  the  person,  a  person  capable  of  appearing  as 
defendant,  against  whom  a  decree  can  be  pronounced,  must 
be  a  party  to  the  cause  before  a  decree  can  be  regularly 
pronounced. 


447  State  ex  rel.  Drake  v.  Doyle. 

"But  were  it  to  be  admitted  that  the  governor  could  be 
considered  as  a  defendant  in  his  personal  character,  no 
case  is  made  which  justifies  a  decree  against  him  person- 
ally. He  has  acted  in  obedience  to  a  law  of  the  state, 
made  for  the  purpose  of  giving  effect  to  an  act  of  con- 
gress ;  and  has  done  nothing  in  violation  of  any  law  of  the 
United  States. 

"The  decree  is  not  to  be  considered  as  made  in  a  case 
in  which  the  governor  was  a  defendant  in  his  personal 
character;  nor  could  a  decree  against  him  in  that  charac- 
ter be  supported. 

"This  decree  cannot  be  sustained  as  against  the  state, 
because,  if  the  llth  amendment  to  the  constitution  does 
not  extend  to  proceedings  in  admiralty,  it  was  a  case  for 
the  original  jurisdiction  of  the  supreme  court.  It  cannot 
be  sustained  as  a  suit  prosecuted  not  against  the  state, 
but  against  the  thing;  because  the  thing  was  not  in  pos- 
session of  the  district  court. 

"We  are  therefore  of  opinion  that  there  is  error  in  so 
much  of  the  decree  of  the  circuit  court  as  directs  that  the 
said  slaves  libelled  by  Juan  Madrazo,  and  the  issue  of  the 
females  now  in  the  custody  of  the  government  of  the  state 
of  Georgia,  or  the  agent  or  agents  of  the  said  state,  be  re- 
stored to  the  said  Madrazo,  as  the  legal  proprietor  thereof, 
and  that  the  proceeds  of  those  slaves  who  were  sold  by 
order  of  the  government  of  the  said  state,  be  paid  to  the  said 
Juan  Madrazo ;  and  that  the  same  ought  to  be  reversed ; 
but  that  there  is  no  error  in  so  much  of  the  decree  as  dis- 
misses the  information  of  the  governor  of  Georgia,  and 
the  claim  of  William  Bowen." 

Governor  of  Georgia  v.  Madrazo  was  followed  and  af- 
firmed in  Kentucky  v.  Dennison,  Governor,  24  How.  66. 
This  was  an  application  for  mandamus,  by  the  governor 
of  Kentucky,  against  the  governor  of  Ohio,  within  the 


Opinions  of  Chief  Justice  Ryan.  448 

original  jurisdiction  of  the  supreme  court,  to  enforce  the 
performance  of  an  executive  duty  by  the  defendant  gov- 
ernor. Of  course,  the  mandamus  could  not  go  to  the  state, 
but  to  its  officers  only.  And  the  objection  was  taken  that 
it  was  not  a  case  between  two  states,  to  give  jurisdiction 
to  the  court  under  the  constitution.  But  the  court  holds: 

"So,  also,  as  to  the  process  in  the  name  of  the  governor, 
in  his  official  capacity,  in  behalf  of  the  state. 

"In  the  case  of  Madrazo  v.  The  Governor  of  Georgia, 
1  Pet.  110,  it  was  decided,  that  in  a  case  where  the  chief 
magistrate  of  a  state  is  sued,  not  by  his  name  as  an  indi- 
vidual, but  by  his  style  of  office,  and  the  claim  made  upon 
him  is  entirely  in  his  official  character,  the  state  itself  may 
be  considered  a  party  on  the  record.  This  was  a  case 
where  the  state  was  the  defendant;  the  practice,  where  it 
is  plaintiff,  has  been  frequently  adopted,  of  suing  in  the 
name  of  the  governor  in  behalf  of  the  state,  and  was  in- 
deed the  form  originally  used,  and  always  recognized  as 
the  suit  of  the  state. 

"Thus,  in  the  first  case  to  be  found  in  our  reports,  in 
which  a  suit  was  brought  by  a  state,  it  was  entitled,  and 
set  forth  in  the  bill,  as  the  suit  of  'The  state  of  Georgia, 
by  Edward  Telf  air,  Governor  of  the  said  state,  complain- 
ant, against  Samuel  Brailsford  and  others;'  and  the  sec- 
ond case,  which  was  as  early  as  1793,  was  entitled  and  set 
forth  in  the  pleadings  as  the  suit  of  'His  Excellency  Ed- 
ward Telfair,  Esquire,  Governor  and  Commander-in- 
Chief ,  in  and  over  the  state  of  Georgia,  in  behalf  of  the 
said  state,  complainant,  against  Samuel  Brailsford  and 
others,  defendants.' 

"The  cases  referred  to  leave  no  question  open  to  con- 
troversy as  to  the  jurisdiction  of  the  court.  They  show 
that  ...  it  has  been  settled,  that  where  the  state  is 


449  State  ex  rel.  Drake  v.  Doyle. 

a  party,  plaintiff  or  defendant,  the  governor  represents  the 
state,  and  the  suit  may  be,  in  form,  a  suit  by  him  as  gov- 
ernor in  behalf  of  the  state,  where  the  state  is  plaintiff,  and 
he  must  be  summoned  or  notified  as  the  officer  representing 
the  state,  where  the  state  is  defendant. 

"We  may  therefore  dismiss  the  question  of  jurisdiction 
without  further  comment ;  and  it  is  very  clear,  that  if  the 
right  claimed  by  Kentucky  can  be  enforced  by  judicial 
process,  the  proceeding  by  mandamus  is  the  only  mode  in 
which  the  object  can  be  accomplished." 

What  is  said  in  Governor  of  Georgia  v.  Madrazo,  and 
in  Kentucky  v.  Dennison,  of  the  governor  of  a  state,  ap- 
plies equally  to  any  other  state  officer,  acting  for  the  state, 
virtute  officii.  The  question  is  not  one  of  the  dignity  of 
the  office,  but  of  the  representation  of  the  state  pro  Jiac 
vice.  "In  the  application  of  this  principle,  there  is  no 
difference  between  the  governor  of  a  state  and  officers  of 
a  state  of  lower  grades.  In  this  respect  they  are  upon  a 
footing  of  equality."  Davis  v.  Gray,  16  Wall.  203. 

The  opinions  of  the  court  in  Osborn  v.  The  Bank,  and 
Governor  of  Georgia  v.  Madrazo,  were  both  delivered  by 
Marshall,  C.  J. ;  and  the  opinion  in  Kentucky  v.  Denni- 
son, by  Taney,  C.  J". ;  two  of  the  most  illustrious  jurists 
known  in  the  history  of  jurisprudence  among  the  great 
English  speaking,  common  law  people.  Their  doctrines 
were  surely  well  and  wisely  considered,  are  entitled  to  the 
most  profound  deference,  and  not  lightly  to  be  overruled. 
And  these  cases  are  in  entire  accord  upon  two  proposi- 
tions, both  conclusive  of  the  question  before  us: 

1.  That  where  a  suit  is  prosecuted  in  a  federal  court,, 
by  a  private  party,  against  a  state  officer,  in  which  the  state 
has  a  direct  interest  but  cannot  be  made  a  party,  the  of- 
ficer himself  must  have  an  interest  or  liability  in  the  sub- 
29 


Opinions  of  Chief  Justice  Ryan.  450 

ject  matter,  upon  which  the  jurisdiction  of  the  court  can 
attach;  and, 

2.  That  where  such  a  suit  is  prosecuted  against  a  state 
officer  having  no  such  interest  or  liability,  in  his  official 
capacity  only,  to  affect  a  right  of  the  state,  the  state  is  the 
real  defendant,  within  the  prohibition  of  the  amendment 
of  the  constitution. 

These  rules  are  vital.  Where  there  is  such  an  interest 
or  liability  of  the  officer  personally,  the  jurisdiction  of  a 
federal  court  might  be  held  to  attach  against  him  per- 
sonally, upon  such  interest  or  liability,  without  direct  vio- 
lation of  the  constitutional  amendment  prohibiting  juris- 
diction against  the  state.  But  where  there  is  no  such  per- 
sonal interest  or  liability  of  the  officer,  and  the  suit  is 
against  him  in  his  official  capacity  only,  for  the  purpose 
of  reaching  an  interest  or  liability  of  the  state,  then  juris- 
diction attaches  on  the  interest  or  liability  of  the  state,  not 
of  the  officer;  the  state  is  the  real  defendant,  and  the  of- 
ficer only  a  nominal  defendant;  and  jurisdiction  is  as 
much  prohibite  1  as  if  the  state  itself  were  defendant.  To 
hold  that  jurisdiction  could,  in  such  a  case,  be  exercised 
against  the  state,  in  the  person  of  its  officer,  would  be  a 
direct  and  mere  evasion  of 'the  constitutional  prohibition, 
which  the  judges  of  all  courts,  federal  and  state,  are  sworn 
to  support;  which  no  judicial  construction  of  any  court 
can  erase  from  the  paramount  law  of  the  land. 

The  subject  matter  of  Governor  of  Georgia  v.  Madrazo 
came  again  before  the  court,  Ex  parte  Juan  Madrazo,  7 
Pet.  627,  upon  application  to  file  a  libel  in  admiralty 
.against  the  state.  The  application  was  denied ;  the  chief 
justice  saying  of  it:  "It  is  a  mere  personal  suit  against  a 
state  to  recover  proceeds  in  its  possession,  and  in  such  a 
case  no  private  person  has  a  right  to  commence  an  original 
suit  in  this  court  against  a  state." 


451  State  ex  rel.  Drake  v.  Doyle. 

Osborn  v.  The  Bank,  Governor  of  Georgia  v.  Madrazo, 
and  Kentucky  v.  Dennison,  are  so  closely  connected  in 
principle  that  we  have  considered  them  together,  a  little 
out  of  the  order  of  the  latter  case.  Between  Governor  of 
Georgia  v.  Madrazo  and  Kentucky  v.  Dennison,  another 
case  came  before  the  court  and  has  its  place  in  the  reports, 
in  which  the  jurisdictional  question  might  have  properly 
arisen.  This  is  Dodge  v.  Woolsey,  18  How.  331.  It  was 
the  case  of  a  bill  filed  in  an  inferior  federal  court,  by  a 
private  party,  against  a  tax  collector  of  the  state,  to  re- 
strain the  collection  of  a  state  tax.  Several  questions 
were  raised  and  passed  upon  by  the  court  in  that  case, 
quite  foreign  to  the  question  which  we  are  considering. 
The  jurisdictional  question  before  us,  arising  under  the 
amendment  of  the  constitution,  appears  not  to  have  been 
raised  at  the  bar  or  considered  by  the  court.  The  juris- 
diction of  the  federal  courts  over  the  subject  matter  in 
other  respects  is  discussed,  but  not  the  jurisdiction  over 
the  state  officer  acting  officially,  without  interest,  within 
the  constitutional  prohibition.  It  appears  quite  obvious 
that  this  question  was  altogether  overlooked.  Indeed  the 
court  says  of  the  case  of  State  Bank  v.  Knoop,  16  How. 
369  :  "It  rules  this  in  every  particular,  and  to  the  opinion 
there  given  we  have  nothing  to  add,  nor  anything  to  take 
away."  State  Bank  v.  Knoop  did  indeed  involve  the 
questions  passed  upon  in  Dodge  v.  Woolsey ;  but  it  was  a 
writ  of  error  to  a  state  court,  and  could  not  possibly  in- 
volve the  jurisdiction  of  a  federal  court,  in  an  original 
suit  against  a  state  officer  acting  officially.  The  oversight 
is  the  more  to  be  regretted,  because  the  assumption  of 
jurisdiction  in  Dodge  v.  Woolsey  disregards  the  two  condi- 
tions before  noticed,  as  solemnly  established  in  Osborn  v. 
The  Bank  and  Governor  of  Georgia  v.  Madrazo,  subse- 
quently confirmed  in  Kentucky  v.  Dennison.  But  the 


Opinions  of  Chief  Justice  Ryan.  452 

rule  applies  to  it,  that  a  case  which  overlooks  a  point  can- 
not be  held  to  overrule  cases  expressly  deciding  the  very 
point.  And  the  positive  rules  of  Osborn  v.  The  Bank, 
and  Governor  of  Georgia  v.  Madrazo,  must  be  held  to  sur- 
vive the  silence  of  Dodge  v.  Woolsey.  If  this  were  other- 
wise, the  negative  authority  of  Dodge  v.  Woolsey,  on  the 
question  of  jurisdiction,  must  be  taken  to  be  overruled  by 
the  positive  authority  of  the  latter  case  of  Kentucky  v. 
Dennison. 

Then  comes  Davis  v.  Gray,  16  Wall.  203,  where  a  re- 
ceiver appointed  in  a  cause  pending  in  an  inferior  federal 
court  filed  his  bill  in  the  same  court  against  the  governor 
and  another  ofiicer  of  a  state,  to  restrain  them  in  executing 
the  law  of  the  state.  The  question  of  jurisdiction  was 
raised  and  discussed  by  the  court.  And  Mr.  Justice 
Swayne,  who  delivered  the  opinion,  says  of  the  question: 

"A  few  remarks  will  be  sufficient  to  dispose  of  the  juris- 
dictional  objections  as  to  the  appellants. 

"In  Osborn  v.  The  Bank  of  the  United  States,  three 
things,  among  others,  were  decided: 

"(1)  A  circuit  court  of  the  United  States,  in  a  proper 
case  in  equity,  may  enjoin  a  state  officer  from  executing  a 
state  law  in  conflict  with  the  constitution  or  a  statute  of 
the  United  States,  when  such  execution  will  violate  the 
rights  of  the  complainant. 

"(2)  Where  the  state  is  concerned,  the  state  should  be 
made  a  party,  if  it  could  be  done.  That  it  cannot  be  done 
is  a  sufficient  reason  for  the  omission  to  do  it,  and  the 
court  may  proceed  to  decree  against  the  officers  of  the  state 
in  all  respects  as  if  the  state  were  a  party  to  the  record. 

"(3)  In  deciding  who  are  parties  to  the  suit,  the  court 
will  not  look  beyond  the  record.  Making  a  state  officer 
a  party  does  not  make  the  state  a  party,  although  her  law 


453  State  ex  rel.  Drake  v.  Doyle. 

may  have  prompted  his  action,  and  the  state  may  stand 
behind  him  as  the  real  party  in  interest.  A  state  can  be 
made  a  party  only  by  shaping  a  bill  expressly  with  that 
view,  as  where  individuals  or  corporations  are  intended  to 
be  put  in  that  relation  to  the  case. 

"Dodge  v.  Woolsey,  The  State  Bank  of  Ohio  v.  Knoop, 
The  Jefferson  Branch  Bank  v.  Skelly,  Ohio  Life  and 
Trust  Company  v.  Debolt  and  the  Mechanics'  and  Traders' 
Bank  v.  Debolt  proceeded  upon  the  same  principles,  and 
were  controlled  by  that  authority,  with  respect  to  the  juris- 
dictional  question  arising  in  each  of  those  cases  as  to  the 
defendant." 

And  again,  speaking  of  parties:  "We  feel  no  difficulty 
in  disposing  of  the  case  as  it  is  presented  in  the  record." 

This  case  professes  to  follow  Osborn  v.  The  Bank;  but 
it  is  extraordinary  that  it  takes  no  notice  of  the  essential 
rule  cited  from  that  case,  that  defendant  state  officers,  to 
give  jurisdiction,  must  themselves  have  an  interest  or  lia- 
bility in  the  subject  matter.  And  it  is  more  extraordi- 
nary still  that,  quoting  several  cases  with  at  best  a  very 
remote  bearing  on  the  question,  the  opinion  makes  no  ref- 
erence to  Governor  of  Georgia  v.  Madrazo  or  Kentucky  v. 
Dennison;  with  both  of  which  the  opinion  is  directly  in 
conflict,  as  well  as  with  the  rule  in  Osborn  v.  The  Bank. 
And  with  all  due  respect,  we  think  it  may  be  said  of  Davis 
v.  Gray,  that,  instead  of  following  the  well  considered  and 
established  rules  in  Osborn  v.  The  Bank,  Governor  of 
Georgia  v.  Madrazo  and  Kentucky  v.  Dennison,  it  rather 
follows,  presumably  by  inadvertence,  the  blind  lead  of 
Dodge  v.  Woolsey,  itself  an  incongruity,  sandwiched  in 
the  reports  between  inconsistent  decisions. 

We  cannot  think  the  vital  principle  established  in  Os- 
born v.  The  Bank,  or  the  judgments  in  Governor  of  Geor- 


Opinions  of  Chief  Justice  Ryan.  454 

gia  v.  Madrazo  and  Kentucky  v.  Dennison,  overruled  by 
Davis  v.  Gray.  These  cases  are  too  solemn  and  of  too 
high  authority  to  be  set  aside  sub  silentio.  We  cannot 
but  think  that  they  were  overlooked;  the  learned  judge 
who  delivered  the  opinion  being  misled  by  the  unconsid- 
ered  and  unfortunate  departure  from  those  cases  of  Dodge 
v.  Woolsey. 

Woodruff  v.  Trapnall,  10  How.  190;  Curran  v.  The 
State  of  Arkansas,  15  id.  304;  State  Bank  v.  Knoop,  16 
id.  360;  Ohio  Life  Ins.  and  Trust  Co.  v.  Debolt,  id.  416; 
The  Bank  v.  Debolt,  18  id.  380,  and  the  Bank  v.  Skelly, 
1  Black,  436,  cited  in  the  opinion  to  support  jurisdiction 
in  Davis  v.  Gray,  were  all  writs  of  error  to  state  courts, 
to  be  classed  with  Cohens  v.  Virginia.  And  their  author- 
ity for  original  jurisdiction  in  an  inferior  federal  court  is 
not  perceived.  And  it  may  be  said,  in  passing,  that  the 
learned  judge  who  delivered  the  opinion  was  in  error  in 
saying  that  in  Woodruff  v.  Trapnall  a  writ  of  mandamus 
was  issued  to  the  proper  representatives  of  the  state.  The 
judgment  of  the  supreme  court  of  the  state  was  simply  re- 
versed in  the  usual  form.  So  in  Curran  v.  Arkansas  the 
judgment  of  the  state  court  was  reversed ;  the  federal  su- 
preme court  simply  following  the  state  supreme  court  in 
holding  that  such  a  suit  would  lie  against  the  state,  by  her 
own  law,  in  her  own  courts. 

When  the  decisions  of  a  state  court  vary  in  interpreting 
state  law,  the  supreme  court  of  the  United  States  makes 
its  own  election  which  it  will  follow.  Gelpcke  v.  Du- 
buque,  1  Wall.  175.  We  may,  with  profound  respect, 
presume  here  upon  the  like  right  of  choice ;  and  we  prefer 
to  hold  the  rules  in  Osborn  v.  The  Bank,  Governor  of 
Georgia  v.  Madrazo  and  Kentucky  v.  Dennison,  as  the 
more  authoritative  and  well  considered  cases  to  settle  the 


455  State  ex  rel.  Drake  v,  Doyle. 

law  of  that  court,  unless  expressly  overruled.  When  ad- 
judications so  solemn  and  so  well  considered  are  disre- 
garded or  forgotten  in  the  court,  none  of  us  may  presume 
to  say,  Indignor;  but  surely  all  of  us  should  recall  sounder 
and  safer  principles  established  in  that  great  court. 
Quandoque  bonus  dormitat  Homerus. 

And  the  rules  established  in  Osborn  v.  The  Bank,  Gov- 
ernor of  Georgia  v.  Madrazo  and  Kentucky  v.  Dennison, 
exclude  jurisdiction  of  the  federal  court  of  the  bill  and 
injunction  pleaded  by  the  secretary  of  state  in  this  case. 

Our  conclusion  would  not  be  different,  if  we  were  to 
accept  Davis  v.  Gray  as  overruling  the  earlier  cases,  and 
establishing  a  different  rule.  For  that  case  does  not  go 
the  length — no  case  which  we  have  been  able  to  find  in 
that  court  does — of  holding  that  the  state  would  be  bound 
in  the  exercise  of  its  authority  by  the  proceeding  in  the 
federal  court  against  its  officer.  Conceding  the  power  of 
the  federal  court  to  bind  the  officer,  as  between  him  and 
the  plaintiff  who  sues  him,  the  constitutional  amendment 
absolutely  prohibits  it  from  binding  the  state,  as  against 
either  the  plaintiff  or  its  own  officer.  In  such  a  case  the 
private  party  seeking  his  remedy  against  the  officer,  must 
be  content  with  that,  valeat  quantum.  He  can  have  none 
against  the  state,  or  binding  the  state,  or  binding  the  of- 
ficer against  the  state.  Against  the  authority  ,of  the  state 
over  its  own  officer,  against  the  officer's  duty  to  the  state, 
federal  process  in  such  a  case  can  avail  nothing.  It  is 
more  than  the  case  of  one  not  bound  by  a  judgment,  be- 
cause not  a  party.  It  is  not  the  case  of  one  without  the 
jurisdiction  of  the  court,  but  of  one  above  the  jurisdiction. 
It  is  the  case  of  a  sovereign  state,  over  which  the  charter 
creating  the  federal  courts,  for  grave  political  reasons, 
prohibits  jurisdiction  in  such  cases;  has  abrogated  the 


Opinions  of  Chief  Justice  Ryan.  456 

jurisdiction  once  improvidently  granted.  It  would  be  a 
singular  perversion  of  all  judicial  rule,  to  hold  that  the 
state  could  not  be  bound  as  a  party,  but  is  bound  without 
being  a  party.  And  it  would  be  a  simple  nullification  of 
the  constitutional  amendment,  to  hold  the  state  in  any 
way  bound  by  the  judgment  of  a  federal  court  against  its 
officer,  at  the  suit  of  a  private  party.  That  would  be,  not 
judicial  construction,  not  judicial  stretch  of  jurisdiction, 
but  judicial  revolution. 

And  it  would  involve  the  singular  absurdity,  that,  while 
the  original  constitution,  which  expressly  gave  jurisdic- 
tion, at  the  suit  of  private  parties,  against  a  sovereign 
state,  confined  such  jurisdiction  to  the  supreme  court  of 
the  United  States,  a  court  worthy  of  such  jurisdiction,  if 
any  federal  court  be,  the  amendment  prohibiting  such 
jurisdiction  in  any  federal  court  would  subject  a  sovereign 
state,  in  the  person  of  its  officer,  and  the  administration 
of  the  state  government,  to  the  process  of  any  petty  fed- 
eral court  which  congress  might  see  fit  to  establish,  at  the 
suit  of  any  vagabond  citizen  or  corporation  of  another 
state  doing  business  in  it. 

We  abide  by  the  letter  and  spirit  of  the  constitution. 
Unfortunately  many  things  in  its  administration  are  tend- 
ing toward  centralization,  which  the  history  and  temper 
of  the  American  people  give  grave  warning  might  be 
closely  followed  by  disintegration.  The  integrity  of  the 
union  has  been  tried.  The  integrity  of  the  states  is  on 
trial.  Much  rests  upon  the  moderation  and  forbearance 
of  the  federal  courts;  as  much  perhaps  upon  the  firmness 
of  the  state  courts,  refusing  to  abdicate  state  authority,  in 
state  matters,  to  assumption  of  federal  jurisdiction.  We 
will  faithfully  try  to  do  our  part.  In  refusing  at  the  last 
term  to  assume  a  jurisdiction  properly  belonging  to  the 


457  Slate  ex  rel.  Drake  v.  Doyle. 

federal  courts,  we  had  occasion  to  say,  and  we  now  repeat : 
"It  is  perhaps  unfortunate  that  the  federal  constitution 
left  any  ground  for  concurrent  jurisdiction  of  the  fed- 
eral with  the  state  courts.  It  has  led  to  some  mischievous 
confusion  of  adjudication,  and  some  vicious  usurpation  of 
jurisdiction,  by  both  federal  and  state  courts.  In  this 
day,  this  is  a  great  and  growing  evil.  And  we  propose, 
in  this  state,  for  the  sake  of  judicial  order,  and  of  the 
integrity  of  the  federal  and  state  governments,  to  do  what 
we  may  towards  confining  the  courts  of  the  state  to  state 
jurisdiction,  and  the  courts  of  the  United  States  to  fed- 
eral jurisdiction."  Bromley  v.  Goodrich,  40  \Yis.  131. 

VTI.  Had  the  federal  court  had  jurisdiction  of  the  bill 
and  injunction  pleaded  by  the  secretary,  to  bind  the  state, 
it  could  not  avail  him  in  this  case.  Because  the  license 
in  force  when  the  bill  was  filed  and  the  injunction  issued, 
has  expired  by  its  own  limitation.  And  it  is  only  to  that 
license  that  the  injunction  can  relate.  The  injunction  is 
indeed  very  loose  and  general;  literally  broad  enough  to 
restrain  the  secretary  from  revoking  any  license  to  the  in- 
surance company,  for  any  cause,  for  all  time.  But  it 
must  receive  a  reasonable  construction,  and  be  confined  to 
the  things  and  the  condition  of  things  existing  when  is- 
sued. When  the  license  existing  at  the  time  the  bill  was 
filed,  expired,  the  injunction  was  spent.  The  secretary 
might  have  found  ground  for  refusing  a  new  license, 
dehors  all  matters  pleaded  in  the  bill;  or  the  legislature 
might  have  repealed  or  modified  the  statute  authorizing 
the  license.  The  new  license,  therefore,  created  a  new 
relation  with  the  state,  though  it  may  have  been  but  the 
renewal  of  an  old  relation  which  had  expired  by  limita- 
tion. And  the  federal  court  which  issued  the  injunction 
could  hardly  have  intended,  certainly  had,  in  any  view, 


Opinions  of  Chief  Justice  Ryan.  458 

no  authority  to  bind  the  defendant  for  all  time,  outside 
of  the  actual  condition  of  things  pleaded  in  the  record, 
or  in  new  relations  between  the  parties.  Even  federal 
jurisdiction,  where  it  attaches,  is  not  so  comprehensive  or 
prospective. 

VIII.  The  writ  in  this  case  will  issue  in  the  right  of 
che  state,  at  any  hazard  to  its  officer.  We  apprehend, 
however,  that  there  will  be  none.  The  state  officer-  is 
bound  to  obey  the  state  authority.  And  if  any  one,  to  be 
found  within  the  state,  should  molest  any  officer  of  the 
state  for  obeying  the  process  of  this  court,  in  the  adminis- 
tration of  the  state  government,  and  the  fact  should  be 
properly  brought  before  us,  we  think  we  should  be  able 
to  afford  ample  and  summary  remedy. 

We  regard  this  matter  as  a  grave  attempt  to  baffle  state 
authority  in  the  administration  of  state  affairs,  in  a  way 
to  be  a  temptation  for  the  use  of  a  somewhat  unjudicial 
adjective.  And  we  are  thoroughly  in  earnest,  as  is  our 
duty  under  our  oaths,  to  enforce  state  authority,  in  state 
affairs,  over  state  officers,  and  on  foreign  corporations 
who  come  here,  ex  gratia  of  state  law,  and  then  set  the  law 
at  defiance.  We  mean  to  suffer  no  trifling  here.  The 
writ  must  be  so  framed  that  the  secretary  not  only  shall 
promptly  revoke  the  existing  license,  but  shall  refrain  from 
granting  any  other  license  to  the  insurance  company  for 
three  succeeding  years,  and  that  he  certify  the  revocation 
to  this  court  within  twenty-four  hours  after  service  of 
the  writ  upon  him. 

Let  the  writ  issue  at  once  in  accordance  with  this  opin- 
ion. 

The  following  is  the  order  made  in  this  case,  omitting 
the  formal  preliminary  clause: 

"It  is  ordered  and  adjudged  that  the  said  demurrer  be 


459  State  ex  rel.  Drake  v.  Doyle. 

and  the  same  is  hereby  sustained  to  the  said  return;  and 
it  is  further  ordered  and  adjudged  that  a  peremptory  writ 
of  mandamus  do  forthwith  issue  out  of  and  under  the  seal 
of  this  court,  to  be  directed  to  the  said  respondent,  com- 
manding him,  and  in  his  absence  the  assistant  secretary 
of  state,  forthwith,  within  twenty-four  hours  after  service 
of  the  writ,  to  vacate,  revoke  and  recall  the  authority,  li- 
cense or  certificate  mentioned  in  the  respondent's  return,, 
and  every  other  existing  authority,  license  or  certificate 
made,  executed  or  given  by  the  respondent  to  the  Conti- 
nental Insurance  Company  of  the  city  of  New  York,  to 
do  or  transact  any  business  in  this  state,  and  absolutely 
to  refrain  and  abstain,  to  the  full  period  of  three  years, 
from  granting,  giving  or  issuing  the  same  or  any  other  au- 
thority, license  or  certificate,  to  the  said  Continental  In- 
surance Company  of  the  city  of  New  York  to  do  or  trans- 
act any  business  in  this  state,  and  to  file  with  the  clerk  of 
this  court,  on  the  day  next  succeeding  the  service  of  this 
writ,  a  certified  copy  of  the  record  or  paper  whereby  such 
authority,  license  or  certificate  shall  have  been  and  be  so 
vacated,  revoked  and  recalled.  Which  writ  shall  be  re- 
turnable on  the  5th  day  of  September  next." 

On  the  16th  of  August,  1876,  the  respondent  filed  with 
the  clerk  of  the  Wisconsin  supreme  court  a  certified  copy 
of  an  entry  made  that  day  in  the  Insurance  Record  kept  in 
his  office,  showing  that  he  had  on  that  day  revoked  the  li- 
cense of  the  Continental  Insurance  Company  of  the  city  of 
New  York,  and  had  mailed  an  authenticated  copy  of  the 
order  revoking  such  license  to  the  secretary  of  the  company, 
and  a  similar  copy  to  each  of  the  agents  of  said  company  in 
this  state.  On  the  24th  of  the  same  month,  the  respondent 
made  due  return  of  the  peremptory  writ,  showing  his  com- 
pliance therewith. 


Opinions  o/  Chief  Justice  Ryan.  460 

NOTE. 

(Each  case  in  this  note  after  which  is  placed  the  figure 
(1)  relates  to  the  subject  discussed  in  the  foregoing  opin- 
ion numbered  I;  those  numbered  (2)  relate  to  the  subject 
in  the  opinion  numbered  II ;  etc. ) 

The  foregoing  cause  having  been  taken  on  writ  of  error 
to  the  Supreme  Court  of  the  United  States,  and  a  super- 
sedeas  bond  given,  it  was  moved  in  that  court  that  all  pro- 
ceedings in  execution  of  the  judgment  of  the  State  court 
had  within  ten  days  after  its  rendition  might  be  vacated 
and  set  aside,  and  all  further  process  in  that  court  be 
stayed.  This  application  was  denied  on  the  ground  that 
the  provision  of  the  Federal  statutes,  to  the  effect  that 
where  a  writ  of  error  may  operate  as  a  supersedeas  execu- 
tion shall  not  issue  until  the  expiration  of  ten  days  after 
the  rendition  of  the  judgment,  refers  only  to  the  judgments 
of  the  United  States  courts.  (Doyle  v.  Wisconsin,  94  U. 
S.  50). 

Shortly  after  the  decision  of  the  Wisconsin  Supreme 
Court,  supra,  in  State  ex  rel.  Drake  v.  Doyle,  the  same 
question  was  presented  to  the  Supreme  Court  of  the  United 
States  on  appeal  from  the  decision  of  the  Circuit  Court  of 
the  United  States  for  the  Western  District  of  Wisconsin, 
perpetually  enjoining  Doyle,  the  Secretary 'of  State,  from 
revoking  the  license  of  the  said  Continental  Insurance 
Company.  (See  Doyle  v.  Continental  Insurance  Com- 
pany, 94  U.  S,  535). 

In  the  Doyle  case,  supra,  the  Supreme  Court  of  the 
United  States  recedes  from  so  much  of  the  doctrine  an- 
nounced in  Insurance  Company  v.  Morse,  20  Wall.  445,  as 
declared  the  Wisconsin  statute  in  question  wholly  void,  and 
admits  the  duty  of  the  Secretary  of  State  to  obey  the  man- 
date of  the  statute  by  revoking  the  license  of  foreign  insur- 
ance companies  when  they  remove  causes  from  the  State 
to  the  Federal  courts  in  violation  of  said  statute. 

A  dissenting  opinion  was  filed  in  the  Doyle  case  in  the 
Supreme  Court  of  the  United  States  by  Mr.  Justice  Brad- 
ley, with  whom  concurred  Mr.  Justice  Swayne  and  Mr. 


461  Note  ta  State  ex  rel  Drake  v.  Doyle. 

Justice  Miller.  The  opinion  of  the  dissenting  justices  was 
to  the  effect  that  the  whole  question  had  been  decided  in 
the  case  of  Insurance  Company  v.  Morse,  supra. 

The  effect  of  these  decisions  is,  and  such  has  now  be- 
come the  settled  law  of  the  country,  that  the  State  may 
compel  a  foreign  corporation  to  abstain  from  the  Federal 
courts  or  cease  to  do  business  in  the  state.  The  act  of  the 
foreign  corporation  in  removing  the  action  from  the  State 
to  the  Federal  court  is  upheld  and  so  also  is  the  act  of  the 
state  in  revoking  the  license  of  such  foreign  corporation  on 
account  of  such  removal. 

State  v.  Doyle,  supra,  has  been  cited,  with  approval,  in 
Wisconsin,  as  follows:  State  ex  rel.  Contl.  Ins.  Co.  v. 
Doyle,2  40  Wis.  230 ;  In  re  Ida  Louisa  Pierce,1  44  Wis. 
438,  456;  Gallinger  v.  Lake  Shore  Traffic  Co.,6  67  Wis. 
535 ;  State  v.  U.  S.  Mut.  Ace.  Assn.,2'  4  67  Wis.  629,  630 ; 
State  v.  U.  S.  Mut.  Ace.  Assn.,2  69  Wis.  81 ;  State  ex  rel. 
Atty.-Gen.  v.  Cunningham,1  81  Wis.  489,  492,  15  L.  E. 
A.  569 ;  State  ex  rel.  Lamb  v.  Cunningham,1  83  Wis.  120, 
159,  17  L.  E.  A.  161,  163,  173;  Wyman  v.  Kimberly- 
Clark  Co.,4  93  Wis.  559 ;  State  ex  rel.  Burnham  v.  Corn- 
wall,1 97  Wis.  568;  Lewis  v.  Am.  Savings  &  Loan  Assn.,4 
98  Wis.  221,  39  L.  E.  A.  566;  Travelers'  Ins.  Co.  v. 
Fricke,2  99  Wis.  371,  51  L.  E.  A.  561 ;  In  re  Ct.  of  Honor 
of  111.,1  109  Wis.  '626,  628-9 ;  Ashland  Lumber  Co.  v.  De- 
troit Salt  Co.,4  114  Wis.  78. 

It  has  been  cited  with  approval  outside  of  the  Supreme 
Court  of  Wisconsin,  as  follows:  Eastman  v.  The  State,2 
109  Ind.  282;  Ins.  Co.  v.  Eaymond,1  70  Mich.  502;  Ne- 
braska ex  rel.  Sch.  Dist.  of  Omaha  v.  Cummings,1  17  Neb. 
313 ;  1ST.  Dak.  ex  rel.  Dak.  Hail  Assn.  v.  Carey,1'  2  2  K 
Dak.  45 ;  State  v.  Brown,3  10  Ore.  228 ;  Lynn  v.  Polk  6 
(Tenn.)  8  Lea,  284;  Wisconsin  v.  Pelican  Ins.  Co.,2  127 
U.  S.  277 ;  Bankers'  Life  Ins.  Co.  v.  Howland,1  73  Vt.  18, 
57  L.  E.  A.  379. 

Valuable  collections  of  authorities  will  be  found  in  notes 
to  the  following  cases  cited  in  L.  E.  A. :  Fleming  v.  Guth- 
rie  (32  W.  Va.  1),  3  L.  E.  A.  54;  People  v.  Kocourek 
(193  111.  507),  58  L.  E.  A.  864. 


Opinions  of  Chief  Justice  Ryan.  462 


Diedrioh  vs.  The  Northwestern  Union  Railway  Company. 

August  Term,  1877. 
(42  Wis.  248.) 

It  appears  in  this  case  that  plaintiff,  Diedrich,  was  the 
owner  of  certain  lots  in  the  City  of  Milwaukee  designated 
upon  the  recorded  plat  of  the  city  made  by  Martin  and 
Juneau  in  1837,  and  that  along  the  east  side  of  the  plat 
and  immediately  between  the  lots  in  question  and  the  wa- 
ters of  Lake  Michigan  was  a  vacant  strip  of  land,  and  there 
was  nothing  upon  the  plat  to  show  for  what  purpose  this 
strip  was  intended  by  the  original  proprietors,  or,  indeed, 
to  show  any  intention  to  include  it  within  the  plat.  When 
the  above  plat  was  made  the  strip  of  land  in  question  be- 
tween the  block  in  which  plaintiff's  land  was  located  and 
the  lake  was  about  seventy  or  eighty  feet  in  width  and 
about  sixty  or  seventy  feet  above  the  level  of  the  lake  and 
descended  precipitously  to  the  lake  beach.  Plaintiff  in 
about  1859  built  a  series  of  cribs  filled  with  stones  sunk 
into  the  lake  about  eighty-five  feet  from  the  shore  opposite 
the  block  in  which  his  lots  were  located,  and  filled  the  in- 
tervening space  with  earth  and  terraced  and  graded  the 
land  to  the  cribs. 

In  1872  the  defendant  railway  company  having  located 
its  route  across  the  eastern  portion  of  the  land  made  in  the 
lake  in  front  of  plaintiff's  lots,  instituted  proceedings  to 
condemn  so  much  of  the  land  as  it  required  for  its  track. 
The  Commissioners  of  Appraisal  awarded  the  plaintiff 
$7,000  as  compensation  for  the  value  of  the  land  taken 
and  damages  to  the  remainder  of  the  tract. 

Plaintiff  appealed  to  the  Circuit  Court,  where  the  jury 


463  Diedrich  u  Northwestern  Union  Ry.  Co. 

by  special  verdict  found  that  plaintiff  was  the  owner  of 
land  condemned  by  the  defendant  railway  company,  and 
assessed  his  damages  for  the  land  taken  at  something  over 
$13,000.  It  was  on  appeal  to  the  Supreme  Court  from 
the  judgment  entered  upon  this  verdict  that  the  opinion 
hereinafter  set  out  of  Chief  Justice  Ryan  was  delivered 
reversing  the  judgment  of  the  Circuit  Court. 

Two  main  questions  were  presented  in  the  case.  First, 
whether  the  land,  of  which  plaintiff  claimed  to  have  been 
deprived  by  the  condemnation  proceedings  instituted  by 
the  railway  company,  had  in  fact  been  dedicated  to  the 
public  by  the  plat  above  referred  to,  so  that  plaintiff  had 
no  title  to  it;  and  second,  if  it  had  not  been  dedicated  to 
the  public,  whether  the  title  asserted  by  the  plaintiff  to 
the  made  land  upon  the  bed  of  the  lake  was  good. 

The  first  question  had  been  considered  by  the  court  in 
the  case  of  Emmons  v.  Milwaukee,  32  Wis.  434,  wherein 
the  court,  Chief  Justice  Dixon  concurring,  held  that  there 
was  nothing  in  the  recorded  plat  of  Martin  and  Juneau 
which  showed  a  dedication  to  the  public  of  the  strip  of  land 
here  in  question  adjacent  to  the  lake. 

In  the  Emmons  case  Mr.  Ryan,  who  appeared  as  coun- 
sel, strongly  contended  that  the  land  in  question  was  by 
the  plat  dedicated  to  the  public. 

In  the  present  case  former  Chief  Justice  Dixon  ap- 
peared as  counsel  and  argued  that  the  contention  of  Mr. 
Ryan  in  the  Emmons  case  (who  had  in  the  meantime  be- 
come Chief  Justice),  was  correct. 

As  appears  by  the  opinion  of  Chief  Justice  Ryan  here- 
inafter set  out,  however,  he  adhered  to  the  rule  of  the  Em- 
mons case. 

All  the  other  facts  necessary  to  an  understanding  of  the 
opinion  sufficiently  appear  in  it. 


Opinions  of  Chief  Justice  Ryan.  464 

The  following  are  the  propositions  of  law  decided: 

The  previous  decision  of  the  court  that  the  recorded  plat 
of  the  city  of  Milwaukee  made  by  Martin  and  Juneau 
in  1837,  does  not  show  any  dedication  to  the  public 
use  of  the  strip  of  land  adjacent  to  the  lake  shore  not 
therein  platted  into  lots  and  blocks  (with  a  certain 
exception  there  named) ,  adhered  to,  as  a  rule  of  prop- 
erty deliberately  adopted  after  a  full  argument  on 
both  sides. 

While  land  reserved  to  the  proprietors  by  their  plat  may 
be  dedicated  to  the  public  by  a  subsequent  and  inde- 
pendent act  in  pais,  the  operation  of  the  plat  itself 
cannot  be  enlarged  by  the  parol  construction  thereof 
by  such  proprietors  or  by  the  public. 

Navigable  waters,  in  this  state,  are  such  as  are  navigable 
in  fact,  though  not  affected  by  the  ebb  and  flow  of  the 
tide. 

Although,  by  the  settled  doctrine  of  this  court,  a  ripa- 
rian owner  upon  a  river  or  stream,  navigable  or  un- 
navigable,  takes,  in  the  absence  of  express  limitation 
in  his  title,  usque  ad  medium  filum  aquae  such  owner 
upon  a  natural  lake  or  pond  takes  only  to  the  natural 
shore  thereof. 

Riparian  rights  proper  rest  upon  title  to  the  lank  of  the 
water,  and  are  the  same  whether  the  riparian. owner 
own  the  soil  under  the  water  or  not  And,  distin- 
guished from  the  right  arising  in  case  of  gradual  and 
insensible  accretion,  or  reliction,  the  general  right  of 
appropriating  and  occupying  the  soil  under  the  water, 
when  such  right  exists,  is  not  properly  a  riparian 
right  resting  not  upon  title  to  the  bank  only,  but  more 
directly  upon  title  to  the  soil  under  the  water. 


465  Diedrich  v.  Northwestern  Union  Ry.  Co. 

Distinguished  from  appropriation  and  occupation  of  the 
soil  under  the  water,  a  riparian  owner  upon  navigable 
water,  whether  or  not  he  own  the  soil  to  the  thread  of 
the  stream,  has  a  right  (unless  prohibited  by  local 
law)  to  construct,  in  shoal  water  in  front  of  his  land, 
proper  wharves  or  piers,  in  aid  of  navigation,  and  at 
his  peril  of  obstructing  navigation,  through  the  water 
far  enough  to  reach  actually  navigable  water. 

As  a  right  of  necessity,  when  water,  navigable  or  not 
navigable,  is  by  natural  causes  wearing  away  and  in- 
truding upon  its  banks,  the  riparian  owner,  whether 
or  not  he  own  the  soil  to  the  thread  of  the  stream, 
may  as  against  the  public,  at  his  peril  of  obstructing 
the  public  use  when  the  water  is  navigable,  and  at 
his  peril  of  the  necessity,  intrude  into  the  water  for 
the  construction  of  work  necessary  to  the  protection 
of  his  land  against  the  action  of  the  water. 

In  the  case  of  navigable  waters,  any  extension  of  posses- 
sion, or  intrusion,  into  the  water,  beyond  the  natural 
shore,  other  than  those  mentioned  in  the  foregoing 
propositions,  whether  by  the  riparian  owner  or  a  stran- 
ger, without  express  and  competent  grant  from  the 
public,  is  a  pourpresture,  vesting  no  title  in  the  person 
who  makes  it. 

In  a  proceeding  to  obtain  compensation  for  land  con- 
demned by  a  railroad  company,  on  appeal  to  the  cir- 
cuit court  from  the  appraisal  of  commissioners,  plaint- 
iff can  recover  only  upon  proof  of  title  in  himself  to 
the  land  taken. 

A  riparian  proprietor  who  has  lawfully  intruded  into 

the  water  for  the  construction  of  a  breakwater,  cannot 

thereby  acquire  title  in  fee  to  land  occupied  by  such 

breakwater  beyond  his  original  boundary ;  nor  can  he, 

30 


Opinions  of  Chief  Justice  Ryan.  466 

in  a  proceeding  for  compensation  for  the  alleged  tak- 
ing of  such  land,  recover  for  any  injury  done  to  the 
breakwater. 

Time  under  Rule  XX  of  this  court  (relating  to  motions 
for  a  rehearing),  can  be  enlarged  by  order  of  the  court 
only,  and  not  by  mere  stipulation. 

Ryan,  Chief  Justice.  I.  A  strong  appeal  was  made  to 
us  by  one  of  the  counsel  of  the  appellant,  to  change,  in  this 
case,  the  rule  of  property  arising  upon  one  of  the  plats  of 
the  city  of  Milwaukee,  established  by  this  court  in  Emmons 
v.  Milwaukee,  32  Wis.  434.  And  some  of  the  authorities 
cited  by  the  distinguished  gentleman  lent  great  force  to  his 
argument.  Rowan  v.  Portland,  8  B.  Mon.,  232 ;  Alves  v. 
Henderson,  16  id.  131.  The  court  was  not  referred  to 
those  cases  in  Emmons  v.  Milwaukee ;  and  it  is  now  impos- 
sible to  say,  had  they  been  then  cited,  what  influence  they 
might  have  had  on  the  judgment  in  that  case.  It  is  not 
impossible  that,  if  the  construction  of  the  plat  now  again 
relied  upon,  had  been  as  well  presented  in  that  case  as  in 
this,  it  might  have  been  adopted  by  the  court.  The  pres- 
ent chief  justice  could  have  hardly  expected  his  views  of 
that  case,  then  overruled  by  the  court,  to  be  now  adopted  by 
the  then  chief  justice.  But,  whatever  the  former  may 
have  thought  or  still  think  of  the  reason  of  the  rule  in  Em- 
mons v,  Milwaukee,  he  quite  agrees  with  his  brethren  that 
it  is  now  too  late  to  disturb  that  case.  Such  a  rule  of  prop- 
erty, once  deliberately  established,  should  be  sure  and 
stable.  It  would  be  an  evil  worse  than  any  error  in  the 
reason  of  the  rule  itself,  that  it  should  be  open  to  review 
and  change  as  often  as  doubts  might  be  suggested  of  its 
original  soundness.  Broom's  Legal  Max.,  111. 

It  was  also  suggested  that  the  construction  of  the  plat 


467  Diedrich  v.  Northwestern  Union  Ry.  Co. 

given  in  Emmons  v.  Milwaukee  was  not  essential  to  the 
judgment  in  that  case,  and  was  therefore  obiter  dictum. 
But  it  is  within  the  memory  of  us  all,  that  the  counsel  on 
both  sides  in  that  case  pressed  the  court  to  determine  upon 
that  appeal  the  true  construction  of  the  plat,  whatever 
might  be  the  judgment  of  the  court.  This  the  court  accord- 
ingly did ;  and  so  the  rule  laid  down  became  res  adjudicata 
in  that  case.  The  judgment  was  in  favor  of  the  city,  though 
the  rule  of  construction  was  against  it.  Therefore  the  city 
moved  for  a  rehearing  upon  the  sole  ground  that  the  con- 
struction of  the  plat  given  in  the  opinion  of  the  court  was 
erroneous ;  and  the  motion  was  elaborately  argued  on  both 
sides  upon  that  question.  The  court  overruled  the  motion, 
thereby  again  affirming  the  construction  of  the  plat.  It 
might  have  been  more  provident  not  to  have  determined 
the  rule  until  the  record  presented  the  question  directly. 
But  it  is  now  too  late  to  hold  that  the  rule  affirmed  and  re- 
affirmed in  that  case,  and  which  determined  finally  the 
rights  of  the  parties  to  it,  is,  as  to  other  cases,  mere  obiter 
dictum.  As  to  all  cases  involving  it,  it  must  be  taken  as 
the  settled  construction  of  the  plat  by  this  court. 

It  was  contended  that  some  parol  evidence  distinguishes 
this  case  from  Emmons  v.  Milwaukee,  and  tends  to  estab- 
lish a  dedication  in  pais  of  the  strip  of  land  upon  the  mar- 
gin of  the  lake.  Undoubtedly  the  owners  of  the  land  who 
made  the  recorded  plat,  might,  by  a  subsequent  and  inde- 
pendent act  in  pais  dedicate  to  the  public  land  reserved  to 
themselves  by  the  plat.  But  we  cannot  think  the  evidence 
in  question  tends  to  establish  any  such  independent  act. 
We  think  that  it  tends  rather  to  put  a  construction  on  the 
plat,  that  the  plat  itself  had  operated  as  a  dedication  of  the 
strip  in  question.  And,  notwithstanding  some  things  which 
might  be  implied  from  Barclay  v.  Ho  well,  6  Peters,  498, 


Opinions  of  Chief  Justice  Ryan.  468 

and  perhaps  from  Gardiner  v.  Tisdale,  2  Wis.  153,  it 
would  be  wild  heresy  in  law  to  enlarge  the  operation  of  the 
plat  by  the  parol  construction  of  those  who  made  it,  or  of 
the  public  who  may  have  claimed  under  it.  When  the  plat 
was  recorded,  it  furnished  the  exclusive  rule  for  its  own 
construction  for  all  time,  unless  reformed  by  judicial  de- 
cree. 

We  are  therefore  obliged  to  affirm  the  title  of  the  re- 
spondent, so  far  as  it  is  within  the  rule  of  Emmons  v.  Mil- 
waukee, that  is,  within  the  strip  of  land  to  the  natural 
shore  of  lake  Michigan. 

II.  But  the  title  asserted  by  the  respondent  in  this  case 
is  not  within  the  strip  of  land  bounded  by  the  natural  shore 
of  the  lake;  but  is  land  made  outside  and  in  front  of  it,, 
upon  the  natural  bed  of  the  lake. 

It  appears  that,  several  years  ago,  the  respondent,  or 
some  one  under  whom  he  claims,  built  an  embankment  into 
the  lake,  extending  some  eighty-five  feet  from  the  natural 
shore,  in  front  of  the  land  which  he  owns  within  this  strip. 
And  it  is  upon  his  title  to  this  embankment  that  the  re- 
spondent's recovery  in  this  case  directly  rests. 

The  title  of  the  respondent,  and  of  all  persons  under 
whom  he  claims,  as  riparian  owners  of  land  bounded  by  the 
lake,  went  to  the  natural  shore  of  the  lake,  and  was  limited 
by  it.  To  the  bed  of  the  lake  within  its  natural  shore, 
neither  they  nor  he  took  any  title  as  riparian  owners.  The 
title,  as  well  as  the  use,  of  the  bed  of  the  lake  is  in  the 
public. 

Several  cases  involving  several  questions  of  riparian 
right  have  been  considered  by  the  court  with  this,  and  are 
decided  at  the  same  time.  Boorman  v.  Sunnuchs;  Dela- 
plaine  v.  C.  &  N.  W.  Railway  Co. ;  Olson  v.  Merrill.  These 
cases  presented  questions  of  riparian  right  upon  lake  Mich- 


469  Diedrich  v.  Northwestern  Union  Ry.  Co. 

igan,  upon  lesser  navigable  lakes,  upon  mere  ponds  not 
navigable,  and  upon  running  streams.  They  were  argued 
at  the  bar  with  much  learning  and  ability,  and  have  been 
thoroughly  investigated  and  considered  by  the  court.  In 
these  cases,  we  have  reached,  amongst  other,  the  following 
conclusions,  having  more  or  less  bearing  on  our  judgment 
in  this  case. 

First.  Adhering  to  the  uniform  rule  of  decision  in  this 
court,  as  will  be  seen  in  Olson  v.  Merrill  (42  Wis.  203), 
that  a  riparian  owner  upon  a  river  or  stream,  navigable  or 
unnavigable,  takes,  in  the  absence  of  express  limitation  in 
his  title,  usque  ad  medium  fillum  aquae,  the  court  holds,  in 
Boorman  v.  Sunnuchs  (42  Wis.  233),  and  Delaplaine  v. 
Railway  Co.  (42  Wis.  214),  as  in  this  case,  that  upon  a 
natural  lake  or  pond,  the  riparian  owner,  as  such,  takes 
only  to  the  natural  shore  of  the  lake  or  pond. 

Second.  Riparian  rights  proper  are  held  to  rest  upon 
title  to  the  bank  of  the  water,  and  not  upon  title  to  the 
soil  under  the  water ;  riparian  rights  proper  being  the  same 
whether  the  riparian  owner  owns  the  soil  under  the  water 
or  not.  And,  distinguished  from  the  right  arising  in  case 
of  gradual  and  insensible  accretion  or  reliction,  the  gen- 
eral right  of  appropriating  and  occupying  the  soil  under 
the  water,  when  such  right  may  exist,  is  not  properly  a 
riparian  right ;  resting  not  upon  title  to  the  bank  only,  but 
more  directly  upon  title  to  the  soil  itself  under  the  water. 

Third.  Distinguished  from  appropriation  and  occupa- 
tion of  the  soil  under  the  water,  a  riparian  owner  upon 
navigable  water,  whether  or  not  he  own  the  soil  usque  ad 
medium  filum  aquw,  and  unless  prohibited  by  local  law, 
has  a  right  to  construct  in  shoal  water,  in  front  of  his  land, 
proper  wharves  or  piers,  in  aid  of  navigation,  and  at  his 
peril  of  obstructing  navigation,  through  the  water  far 


Opinions  of  Chief  Justice  Ryan.  470 

enough  to  reach  actually  navigable  water ;  this  being  held 
to  further  the  public  use  of  the  water,  to  which  the  public 
title  under  the  water  is  subordinate;  and  therefore  to  be, 
in  the  absence  of  prohibition,  passively  licensed  by  the  pub- 
lic, and  not  a  pourpresture. 

Fourth.  As  a  right  of  necessity,  when  water,  navigable 
or  not  navigable,  is  by  natural  causes  wearing  away  and  in- 
truding upon  its  banks,  the  riparian  owner,  whether  or  not 
he  own  the  soil  usque  ad  medium  filum  aquae,  may,  as 
against  the  public,  at  his  peril  of  obstructing  the  public  use 
when  the  water  is  navigable,  and  at  his  peril  of  the  neces- 
sity, intrude,  as  far  as  may  be  necessary,  into  the  water, 
for  the  construction  of  works  necessary  to  the  protection  of 
his  land  against  the  action  of  the  water. 

Fifth.  Without  express  and  competent  grant  from  the 
public,  the  rights  declared  in  the  foregoing  third  and  fourth 
conclusions,  are  the  only  rights  of  a  riparian  owner,  upon 
navigable  water,  to  extend  his  possession  beyond  or  intrude 
within  the  natural  shore  of  the  water.  Any  other  exten- 
sion or  intrusion  into  the  water,  beyond  the  natural  shore, 
whether  made  by  the  riparian  owner  or  a  stranger,  is  a 
pourpresture,  vesting  no  title  in  him  who  made  it. 

It  is  well  to  explain  here  that  in  speaking  of  water  as 
navigable  or  not  navigable,  we  do  not  use  the  words  in  their 
sense  at  the  common  law.  Waters  at  the  common  law 
were  called  navigable,  only  when  affected  by  the  ebb  and 
flow  of  the  tide.  Of  course  in  this  state,  bounded  on  one 
side  by  a  great  fresh!  water  sea,  and  on  another  by  a  great 
river,  which  with  its  confluents  constitutes  perhaps  the 
most  extensive  inland  navigation  in  the  world,  and  hav- 
ing within  it  many  streams  and  bodies  of  water  capable 
of  navigation  and  actually  navigated,  there  is  no  water 
subject  to  the  ebb  and  flow  of  the  tide,  or  called  naviga- 


471  Diedrich  v.  Northwestern  Union  Ry.  Co. 

hie  at  the  common  law.  Here,  therefore,  the  restricted 
sense  of  the  word,  navigable,  at  the  common  law,  is  wholly 
inappropriate  to  the  actual  condition  of  things.  Waters 
are  here  held  navigable  when  capable  of  navigation  in  fact, 
without  other  condition.  And  when  we  use  the  terms,  nav- 
igable or  unnavigable,  we  mean  capable  or  incapable  of  ac- 
tual navigation.  The  confusion  on  this  subject  which  some- 
times occurs  by  the  misapplication  of  the  common-law 
sense  of  terms  to  the  very  different  geographical  conditions 
of  this  country,  and  the  true  sense  here  of  the  term,  navi- 
gable, are  well  stated  in  S.  B.  Magnolia  v.  Marshall,  39, 
Miss.  109. 

The  rule  that  the  title  of  the  riparian  owner  upon  a 
natural  lake  or  pond  does  not  extend  beyond  the  natural 
shore,  appears  to  be  very  generally,  almost  universally 
recognized,  and  is  discussed  by  Cole,  J.,  in  Delaplaine  v. 
Railway  Co.,  supra.  It  is  unnecessary  to  repeat  here  what 
is  there  said,  and  in  which  we  all  concur.  Indeed,  the 
position  was  affirmed  in  this  court  as  far  back  as  Mariner 
v.  Schulte,  13  Wis.  692. 

The  rule  that  riparian  rights  rest  upon  the  title  to  the 
bank  and  not  to  the  bed  of  the  water,  is  also  discussed  in 
the  same  opinion  of  Cole,  J.,  in  which  it  enters  into  the 
judgment  of  the  court  more  directly  than  it  does  in  this 
case,  and  need  not  be  noticed  here  at  any  length.  We  take 
it  to  rest  on  sound  principle,  and  to  be  affirmed  or  implied 
in  a  great  majority  of  adjudged  cases  involving  the  point. 
It  is  distinctly  recognized  in  Chapman  v.  O.  &  M.  River 
R.  R.  Co.  33  Wis.  629.  The  authority  of  the  latter  case 
was  assailed  at  the  bar  in  Delaplaine  v.  Railway  Co.,  su- 
pra. The  criticism,  however,  failed  to  disclose  to  us  any 
error  in  the  principles  of  the  decision  or  in  the  reasoning 
of  the  opinion.  We  think  it  amply  sustained  by  the  au- 


Opinions  of  Chief  Justice  Ryan.  472 

thorities  cited  in  it ;  and  fully  supported,  if  need  were,  by 
the  later  and  very  able  case  in  the  English  House  of  Lords, 
of  Lyon  v.  Fishmongers'  .Co.,  L.  R.,  1  Appeal  Cas.  662, 
which  is  a  direct  and  most  satisfactory  authority  in  sup- 
port of  the  rule  under  consideration. 

The  rule  that  the  right  of  appropriation  and  occupation 
of  the  bed  of  the  water,  where  such  right  exists,  rests  upon 
title  to  the  bed  of  the  water  itself,  and  not  upon  title  to  the 
bank  only,  appears  to  be  in  principle  nearly  self-evident. 
When  the  riparian  owner  is  seized  also  of  the  soil  under 
the  water,  his  title  is  subject  only  to  public  use  of  the  water, 
and  to  private  rights  of  other  riparian  owners.  When  the 
water  is  not  navigable,  the  public  has  no  easement ;  and  the 
riparian  owner  may,  in  general,  put  his  estate  under  the 
water  to  any  proper  use  he  may  please,  not  infringing  upon 
the  rights  of  other  riparian  owners,  and  not  violating  any 
public  law.  When  the  water  is  navigable,  he  may  in  gen- 
eral make  like  use  of  his  estate  under  the  water,  subject 
to  the  like  limitations,  and  not  infringing  upon  the  para- 
mount right  of  use  in  the  public. 

These  views  are  too  familiar  to  call  for  examination  of 
authorities  at  length.  The  principles  on  which  they  rest 
have  been  recognized  in  many  cases  'in  this  court.  Walker 
v.  Shepardson,  2  Wis.  384,  S.  C.  4  id.  486;  Carpenter  v. 
Mann,  17  id.  155 ;  Yates  v.  Judd,  18  id.  118 ;  Milwaukee 
Gaslight  Co.  v.  Gamecock,  23  id.  144;  Wisconsin  River  I. 
Co.  v.  Lyons,  30  id.  61 ;  Arimond  v.  Canal  Co.,  31  id.  316 ; 
Chapman  v.  Railroad  Co.,  33  id.  629 ;  and  perhaps  other 
cases. 

The  rule  giving  to  the  riparian  owner,  and  limiting, 
the  right  to  construct  wharves  and  piers  into  navigable 
water  to  the  point  of  actual  navigability,  is  fully  sanctioned 
by  Walker  v.  Shepardson,  supra,  in  this  court,  and  Strong 


473  Diedrich  v.  Northwestern  Union  Ry.  Co. 

v.  Dutton  and  Atlee  v.  Packet  Co.,  infra,  in  the  federal 
supreme  court. 

The  rule  permitting  a  riparian  owner,  as  against  the 
public,  to  intrude  as  far  as  may  be  absolutely  necessary  in 
the  construction  of  works  necessary  to  protect  his  land 
against  the  action  of  the  water,  without  impairing  any 
public  use,  appears  to  us  to  go  little,  if  any,  beyond  the  rule 
at  the  common  law.  The  King  v.  The  Commissioners, 
etc.,  8  Barn.  &  Cress.  355 ;  Trafford  v.  The  King,  8  Bing. 
204.  So  far  as  it  may  appear  to  enlarge  the  common-law 
right,  we  believe  it  to  be  necessary  to  the  rights  of  property 
on  some  of  the  waters  of  this  state,  especially  on  Lake 
Michigan;  and  we  hold  it  to  be  one  of  many  rights 
founded  on  the  necessities  of  self  preservation.  See  Mil- 
ler v.  Milwaukee,  14  Wis.  642.  It  may  aid  in  preserving 
much  valuable  property ;  and,  guarded  as  we  have  guarded 
it,  can  work  no  injury  to  the  public.  Whether  and  how 
far  one  riparian  owner  may  exercise  this  right  to  the  in- 
jury of  another,  or,  exercising  it,  be  liable  for  such  injury, 
are  questions  on  which  we  indicate  no  opinion. 

It  is  unnecessary  here  to  discuss  these  two  last  rules  at 
any  length ;  because  there  is  no  pretense  in  this  case  that 
the  respondent's  embankment  was  constructed  as  a  wharf 
or  pier  in  aid  of  navigation,  and  none  worth  serious  con- 
sideration that  it  was  designed,  and  none  whatever  that  it 
was  necessary,  to  protect  his  estate  bounded  by  the  shore 
of  the  lake  against  the  wash  of  the  water.  It  seems  to  have 
been  built  and  used  for  the  sole  purpose  of  extending  into 
the  lake  his  pocsession  bounded  by  the  lake.  We  have 
stated  these  rules  here,  chiefly  that  our  general  conclusions 
upon  the  general  subject,  here  grouped  together,  may  fully 
and  clearly  appear,  without  risk  of  misapprehension. 

The  rule  that  where  the  fee  of  the  bed  of  the  water  is  in 
the  public,  the  general  right  of  the  riparian  is  confined  to 


Opinions  of  Chief  Justice  Ryan.  474 

legitimate  uses  of  the  water  only,  appears  to  follow  of  ne- 
cessity from  the  principles  already  stated.  It  is  difficult 
to  perceive,  how,  in  that  case,  the  riparian  owner  could  take 
right  to  intrude  upon  the  public  fee  under  the  water,  which 
he  might  not  take  to  intrude  upon  the  private  fee  bounding 
his  estate  upon  the  land  side.  This  is  especially  apparent 
when  the  water  is  navigable,  and  the  use  of  the  water,  as 
well  as  the  fee  in  its  bed,  is  in  the  public.  In  that  case, 
all  riparian  right  is  subject  both  to  the  fee  and  to  the  use; 
and  the  riparian  owner  takes  no  right  to  intrude  upon 
either. 

And  the  reason  of  the  rule  applies  equally,  whether  the 
water  immediately  next  the  shore  be  shoal  or  deep.  For 
the  feet  is  equally  in  the  public ;  even  the  shoal  water  next 
the  shore  may  aid  the  public  use,  and  may  deepen  or  be 
deepened,  so  as  to  become  practically  capable  of  naviga- 
tion. It  is  difficult  to  perceive  on  what  principle  the  right 
of  public  use  in  shoal  water  next  the  banks  is  to  be  distin- 
guished from  the  right  of  public  use  in  shoal  water  on  bars 
or  other  natural  obstructions  in  the  channel  of  navigable 
waters.  The  public  has  a  right  to  extend  'the  actual  ca- 
pacity of  use  everywhere  within  the  banks;  making  the 
public  use  co-extensive  with  the  fee.  Wis.  R.  I.  Co.  v. 
Lyons,  30  Wis.  61. 

Practically,  in  such  a  case  as  this,  if  a  riparian  owner 
might  appropriate  to  himself,  by  embankment,  the  public 
fee  under  shoal  water  next  the  bank,  his  embankment  might 
well  in  time  cause  the  navigable  water  outside  of  it  to  be- 
come shoal  in  its  turn,  as  seems  to  have  happened  in  this 
case;  whereupon  the  right  to  intrude  upon  the  public  fee 
would  again  accrue,  and  so  on  from  time  to  time  indefi- 
nitely ;  thus  equally  intruding  upon  the  public  fee  and  im- 
pairing the  public  use. 

Be  that  as  it  may,  it  is  conclusive  against  the  right  of 


475  Diedrich  v.  Northwestern  Union  Ry.  Co. 

private  appropriation  claimed,  that,  in  such  a  case,  the 
riparian  owner  takes  neither  fee  nor  use  in  the  bed  of  the 
water  adjoining  his  riparian  possession. 

These  views  are  so  clearly  founded  on  principle,  that 
we  think  we  could  entertain  no  doubt  of  them,  even  if  they 
had  not  been  expressly  adjudicated.  But  there  are  cases 
upon  the  point,  adjudged  by  very  high  authority,  and  quite 
satisfactory  to  us. 

The  limitation  of  the  right  of  the  riparian  owner  upon 
navigable  water  to  intrude  through  shoal  water  upon  the 
bed  of  the  water,  for  the  erection  of  wharves  or  piers  in  aid 
of  navigation  only,  is  clearly  implied  by  the  whole  discus- 
sion of  the  court  in  Strong  v.  Dutton,  1  Black,  23.  The 
point  was  not  directly  involved  in  that  case;  but  appears 
to  have  been  in  the  subsequent  case  of  Atlee  v.  Packet  Co., 
21  Wall.  389. 

In  the  latter  case  the  riparian  owner  had  sawmills  on 
the  bank  of  the  Mississippi  river ;  and,  as  part  of  a  boom 
for  receiving  and  retaining  saw  logs,  had  built  a  pier  in  the 
river,  disconnected  with  the  shore,  in  water  ten  or  twelve 
feet  deep.  Of  this  pier,  it  is  said  in  the  opinion  of  the 
court ;  "Some  kind  of  a  boom  was  necessary  to  enable  him 
(the  riparian  owner)  to  keep  these  logs  safely  and  econom- 
ically. No  question  is  made  but  that  if  he  had  a  right  to 
build  a  pier  at  that  place,  it  was  built  with  due  skill  and 
care." 

After  discussing  the  rights  which  a  state  may  confer 
upon  municipal  corporations  to  construct  landings  upon 
navigable  waters,  the  court  proceeds  thus: 

"The  wharves  or  piers  are  generally  located  by  lines 
bearing  such  relation  to  the  shore  and  to  the  navigable 
water  as  to  present  no  danger  to  vessels  using  the  river,  and 
the  control  which  the  state  exercises  over  them  is  such  as 
to  secure  at  once  their  usefulness  and  their  safety. 


Opinions  of  Chief  Justice  Ryan.  476 

"These  structures  are  also  allowable  in  a  part  of  the 
water  which  can  be  used  for  navigation,  on  the  ground  that 
they  are  essential  aids  to  navigation  itself. 

"The  navigable  streams  of  the  country  would  be  of  lit- 
tle value  for  that  purpose,  if  they  had  no  places  where  the 
vessels  which  they  floated  could  land,  "with  conveniences 
for  receiving  and  discharging  cargo,  for  laying  by  safely 
until  this  is  done,  and  then  departing  with  ease  and  secu- 
rity in  the  further  prosecution  of  their  voyage.  Wharves 
and  piers  are  as  necessary  almost  to  the  successful  use  of 
the  stream  in  navigation  as  the  vessels  themselves,  and  are 
to  be  considered  as  an  important  part  of  the  instrumental- 
ities of  this  branch  of  commerce.  But  to  be  of  any  value 
in  this  respect,  they  must  reach  so  far  into  deep  water  as 
to  enable  the  vessels  used  in  ordinary  navigation  to  float 
while  they  touch  them  and  are  lashed  to  their  sides.  They 
must  of  necessity  occupy  a  part  of  the  stream  over  which 
a  vessel  could  float  if  they  were  not  there." 

Having  stated  that  the  riparian  owner  had  no  statutory 
or  municipal  authority,  the  court  proceeds: 

"IsTor  is  there  any  claim  or  pretense  that  this  pier  is  in 
aid  of  navigation.  ~No  vessel  or  watercraft  is  expected  to 
land  there,  nor  are  there  any  arrangements  by  which  they 
can  land  or  be  secured  or  fastened.  The  size  of  the  pier, 
its  sharp  corners,  its  elevation  from  the  water,  and  its 
want  of  connection  with  the  shore,  forbid  any  such  use  of 
it.  It  is  intended  to  receive  nothing  that  floats  but  rafts, 
and  no  rafts  but  such  as  its  owner  designs  to  keep  there 
permanently  for  his  own  use. 

"He  rests  his  defense  solely  on  the  ground  that  at  any 
place  where  a  riparian  owner  can  make  such  a  structure 
useful  to  his  personal  pursuits  or  business,  he  can,  without 
license  or  special  authority,  and  by  virtue  of  this  owner- 
ship, and  of  his  own  convenience,  project  a  pier  or  road- 


477  Diedrich  v.  Northwestern  Union  Ry.  Co. 

way  into  the  deep  water  of  a  navigable  stream,  provided 
he  does  it  with  care,  and  leaves  a  large  and  sufficient  pass- 
way  of  the  channel  unobstructed. 

"IsTo  case  known  to  us  has  sustained  this  proposition, 
and  we  think  its  bare  statement  sufficient  to  show  its  un- 
soundness.  *  *  * 

"We  are  of  opinion  that  the  pier  against  which  libel- 
lant's  barge  struck,  was  placed  by  him  (the  riparian  owner) 
in  the  navigable  water  of  the  Mississippi  river  without 
authority  of  law,  and  that  he  is  responsible  for  the  dam- 
ages to  the  barge  and  its  contents." 

The  rule  of  that  court,  when  not  controlled  by  state  de- 
cision, is,  that  riparian  owners  upon  navigable  streams 
take  only  to  the  shore,  and  not  usque  ad  medium  filum 
aquce.  That  makes  the  conditions  of  that  case,  in  their 
view,  so  far  the  same  as  in  this.  The  principle  on  which 
the  decision  rests  is  perhaps  not  very  clearly  stated;  but 
it  appears  to  us  that  it  rests,  and  the  reasoning  of  the  court 
throughout  goes  to  show  that  it  does  rest,  on  the  principle 
that  a  riparian  owner  upon  navigable  water  can  not  in- 
trude upon  the  bed  of  the  water,  save  only  by  piers  or 
wharves  in  aid  of  navigation.  If,  in  that  case  or  in  this, 
the  riparian  owner  could  of  right  appropriate  to  his  own 
use  the  bed  of  the  water  under  shoal  to  navigable  water, 
it  would  be  immaterial  whether  he  should  build  outwards 
from  the  shore,  or,  as  in  that  case  and  in  this,  first  con- 
struct a  pier  reaching  navigable  water,  and  then,  as  in 
this  case,  connect  it  by  embankment  with  the  shore.  The 
pier  in  that  case  was  held  to  be  a  pourpresture,  because  it 
was  there,  not  in  aid  of  navigation,  as  the  bridge  pier  in 
Strong  v.  Dutton,  but  in  aid  of  the  riparian  owner's  con- 
venience on  the  bank ;  not  in  aid  of  the  public  use  of  the 
water,  but  in  aid  of  the  private  uses  of  the  land.  Surely, 


Opinions  of  Chief  Justice  Ryan.  478 

after  the  judgment  in  that  case,  the  riparian  owner  could 
not  have  legalized  his  pier  by  connecting  it  with  the  shore 
by  embankment.  The  court  does  not  rest  its  judgment 
upon  the  disconnection  of  the  pier  from  the  shore.  The 
pier  was  held  to  be  unlawful,  not  because  it  was  discon- 
nected with  the  shore,  but  because  the  riparian  owner  had 
no  right  to  intrude  where  it  was,  upon  the  public  fee  and 
the  public  use.  The  court  puts  the  pier  upon  the  same 
ground  as  a  roadway  to  the  same  point;  clearly  covering 
such  an  intrusion  as  that  in  the  case  before  us.  It  ap- 
pears in  that  case  that  part  of  the  water  was  shoal  between 
the  pier  and  the  shore;  and  we  apprehend  that  it  would 
not  have  changed  the  view  of  the  court,  had  the  water  been 
shoal  the  entire  distance.  For  the  court  very  plainly  in- 
timates that  a  pier  in  aid  of  navigation,  in  the  same  place, 
would  have  been  a  lawful  structure  within  the  rule  of 
Strong  v.  Dutton. 

A  still  more  satisfactory  case  in  support  of  our  views,  is 
Austin  v.  Rutland  R.  R.  Co.,  45  Vt.  215.  That  case  arose 
in  regard  to  land  bounded  by  Lake  Champlain,  in  which 
the  court  held  that  the  riparian  owner  took  no  title  in  the 
bed  of  the  lake  beyond, the  shore.  A  stranger  made  land 
upon  the  bed  of  the  lake,  in  front  of  the  riparian  owner's 
estate,  into  navigable  water,  with  wharves  upon  the  lake 
side.  The  riparian  owner  brought  ejectment  for  the  land 
so  made  in  front  of  him.  The  court  appears  to  have  as- 
sumed that,  had  the  riparian  owner  himself,  as  such,  a 
right  in  the  bed  of  the  lake,  to  intrude  such  an  embank- 
ment upon  it  into  navigable  water,  the  embankment  built 
by  a  stranger  would  enure  to  him,  as  a  house  built  by  a 
stranger  enures  to  the  owner  of  the  land.  The  court  there- 
fore considers  the  right  of  the  riparian  owner  to  extend 
his  possession  to  navigable  water ;  and  holds  that  "all  that 


479  Diedrich  v.  Northwestern  Union  R}>.  Co. 

could  be  claimed  for  the  riparian  owner  is  the  exclusive 
right  to  pass  to  and  from  the  shore,  as  it  originally  was, 
from  and  to  the  lake,  but  no  peculiar  or  additional  right  to 
the  lake  itself."  "There  is  no  common  law  of  Vermont 
by  which  the  owner  of  land  bounded  on  Lake  Champlain 
has  a  right  beyond  low-water  mark  to  appropriate  as  his 
own  the  bed  of  the  lake."  The  court  suggests  that  the 
riparian  owner  may  have  a  remedy  against  the  land  in- 
truded between  him  and  the  lake,  as  a  nuisance ;  but  holds 
against  him  in  the  ejectment,  for  want  of  title  in  land 
made  on  the  bed  of  the  lake. 

The  opinion  of  the  court  is  able  and  learned,  discussing 
at  some  length  the  English  and  American  authorities  on 
the  subject.  And  we  are  quite  satisfied  that  it  states  the 
true  rule  which  should  prevail  in  this  state. 

There  are,  indeed,  cases  more  or  less  conflicting  with 
this  view,  of  which  we  shall  notice  but  one  or  two. 

The  true  ground  of  the  rule  in  Rice  v.  Ruddiman,  10 
Mich.  125,  that  the  riparian  owner  takes  usque  ad  medium 
filum  aquae  upon  Muskegon  lake,  is  that  the  lake  is  only 
a  widening  of  the  river.  With  the  same  view  of  the  lake, 
we  should  hold  the  same  view  of  the  law.  It  is  true  that 
some  of  the  opinions  speak  of  extending  the  same  rule  of 
ownership  usque  ad  medium  filum  aquae  to  all  small  lakes 
within  the  state ;  but  not  so  to  lake  Michigan.  It  is  also 
true  that  some  of  the  opinions  speak,  and  we  cannot  help 
thinking  somewhat  loosely,  of  some  measure  of  riparian 
right  of  use,  "not  exclusive  or  unrestricted,"  of  the  bed  of 
navigable  waters,  under  shallow  water  by  the  shore.  "We 
have  considered  what  is  there  said,  with  great  attention 
and  the  deference  due  to  the  great  learning  and  ability  of 
the  court.  But  we  cannot  help  thinking  that  even  such  a 


Opinions  of  Chief  Justice  Ryan.  480 

qualified  right  of  intrusion  into  the  shoal  water  of  navi- 
gable streams  or  bodies  would  tend  to  the  result  accomp- 
lished in  Yates  v.  Milwaukee,  10  Wall.  49Y,  where  it  was 
held  that  the  public  authorities,  in  the  process  of  render- 
ing navigable  to  its  full  width  a  public  river,  could  not, 
whether  the  fee  under  the  water  were  in  the  public  or  in 
the  riparian  owner,  remove  a  solid  pier  or  embankment  in- 
truded by  the  riparian  owner  in  shoal  water  into  the  river 
and  upon  the  public  use,  without  making  compensation 
for  it.  Such  a  result  of  permissive  private  intrusion  upon 
public  right  is  pregnant  with  warning  against  the  permis- 
sion. We  cannot  help  regarding  the  latter  case  as  an  ex- 
ceptional one,  inconsistent  with  many  better  considered 
cases  in  the  same  court.  We  think  that  the  true  measure 
of  right  is  the  rule  in  Strong  v.  Dutton,  and  we  are  not 
sure  that  the  supreme  court  of  Michigan  meant  anything 
more. 

We  have  here  taken  no  notice  of  the  exact  line  of  bound- 
ary upon  lakes  or  ponds ;  whether  it  be  high  water  or  low 
water,  or  the  water's  edge ;  the  exact  line  of  boundary  being 
immaterial  in  the  case  of  so  extended  an  intrusion. 

With  these  views,  it  is  hardly  necessary  to  add  that,  in 
our  judgment,  the  respondent  wholly  failed  in  sustaining 
his  title  to  the  locus  in  quo. 

III.  If  the  railroad  had  been  constructed  in  front  of 
the  respondent's  estate  in  the  strip  of  land  upon  the  natu- 
ral shore  of  the  lake,  so  as  injuriously  to  affect  his  riparian 
right,  we  admit  that  he  would  be  entitled  to  damages  for 
the  injury.  Delaplaine  v.  Railway  Co.,  supra.  But  that 
is  not  the  respondent's  claim  in  this  proceeding.  He 
claims,  not  for  the  injury  to  his  riparian  right,  but  for 
land  taken  of  which  he  is  seized.  Whether  or  not  he  had 
lost  or  impaired  his  riparian  right,  by  the  construction  of 


481  Diedrich  v.  Northwestern  Union  Ry.  Co. 

the  embankment  in  front  of  it,  is  a  question  not  before  us 
in  this  case,  and  on  which  we  indicate  no  opinion. 

IV.  We  have  not  considered  the  right  of  the  railroad 
to  go  where  it  does.  As  in  ejectment,  a  party  seeking 
compensation  in  such  a  proceeding  as  this,  must  recover 
on  the  strength  of  his  own  title ;  and  until  he  prove  title  in 
himself,  is  in  no  condition  to  question  the  right  of  the  other 
party. 

By  the  Court. — The  judgment  of  the  court  below  is  re- 
versed, and  the  cause  remanded  for  a  new  trial. 

On  a  motion  by  the  respondent  for  a  rehearing,  the  fol- 
lowing opinion  was  filed: 

Ryan,  Chief  Justice.  The  argument  of  the  learned 
counsel  for  the  respondent,  upon  the  motion  for  a  rehear- 
ing of  this  appeal,  imputes  to  the  former  opinion  in  this 
case  error  of  fact,  and  not  of  law. 

The  counsel  reproves  us  for  calling  the  respondent's 
structure  in  the  lake,  an  embankment ;  and  says  that  it  is 
only  a  breakwater  to  protect  the  respondent's  land  abut- 
ting on  the  lake.  If  there  really  be  such  error  in  fact,  we 
think  that  it  is  in  the  case  made,  and  not  in  the  judgment 
of  the  court.  The  respondent,  in  his  notice  of  appeal  to 
the  court  below,  describes  what  we  call  an  embankment  as 
"a  piece  or  parcel  of  land,"  etc.  And  our  reading  of  the 
testimony  has  led  us  to  believe  that  description  to  be  cor- 
rect in  calling  the  locus  in  quo  land;  land  made  by  em- 
bankment in  the  lake. 

But  if  we  be  mistaken  in  this,  and  if  the  track  of  the 
railroad  be  not  over  an  embankment  made  to  extend  the 
respondent's  possession  into  the  lake,  but  over  a  break- 
31 


Opinions  of  Chief  Justice  Ryan.  482 

water  only,  made  to  protect  his  possession  in  the  land 
bounded  by  the  natural  shore  of  the  lake,  we  do  not  see 
how  it  can  avail  the  respondent. 

For,  whatever  it  be,  the  respondent  in  his  notice  claims 
as  the  owner  of  it  in  fee  simple.  Pretermitting  the  ques- 
tion of  the  respondent's  right  to  construct  a  breakwater 
for  the  protection  of  his  land,  some  eighty-five  feet  into  the 
lake,  without  proof  of  the  necessity  of  so  great  or  any  in- 
trusion upon  the  public  fee  under  the  lake,  we  are  wholly 
at  a  loss  to  comprehend  how  the  respondent  could  acquire 
a  fee  by  a  breakwater,  which  it  appears  to  be  now  con- 
ceded that  he  could  not  by  embankment.  Indeed,  the 
claim  of  private  confiscation  of  the  public  fee  appears  to 
us  to  be  more  plausible  by  embankment,  than  by  break- 
water. For  the  former  would  appear  to  be  the  more  per- 
manent of  the  two,  and  more  clearly  to  imply  a  posses- 
sory right. 

In  the  respondent's  notice  of  appeal,  he  does  not  claim 
that  the  appellant  has  destroyed  or  impaired  a  breakwater, 
but  that  it  has  taken  a  strip  of  land.  Passing  by  the  vari- 
ance between  the  respondent's  claim  and  his  counsel's 
brief,  we  are  unable  to  perceive  an  injury  to  the  respond- 
ent for  which  he  could  recover  in  this  proceeding,  by  the 
railroad's  passing  over  the  breakwater  of  the  brief,  with- 
out injury  to  it  as  a  breakwater  in  the  protection  of  the 
land  bounded  by  the  shore  of  the  lake. 

By  the  Court. — A  rehearing  is  denied. 

NOTE. 

(Each  case  in  this  note  after  which  is  placed  the  figure 
(*)  relates  to  the  subject  discussed  in  the  foregoing  opin- 
ion numbered  I ;  those  numbered  (2)  relate  to  the  subject  in 
the  opinion  numbered  II;  etc.) 


483       Note  to  Diedrich  v.  Northwestern  Union  Ry.  Co. 

Diedrich  v.  The  Northwestern  Union  Railway  Com- 
pany, supra,  has  been  cited  with  approval  in  the  Wiscon- 
sin Supreme  Court,  as  follows :  Delaplaine  v.  C.  &  !N".  W. 
Ry.,2  42  Wis.  226 ;  Boorman  v.  Sunnuchs,2  42  Wis.  242 ; 
Stevens  Point  Boom  Co.  v.  Reilly,2  44  Wis.  304,  305; 
Stevens  Point  Boom  Co.  v.  Reilly,2  46  Wis.  242,  243,  244 ; 
Cohn  v.  Wausau  Boom  Co.,2  47  Wis.  322,  324;  Diedrich  v. 
K  W.  U.  Ry.,2  47  Wis.  662 ;  Larson  v.  Furlong,2  50  Wis. 
689,  691,  692;  Lawson  v.  Moury,3  52  Wis.  235;  Win- 
chester v.  City  of  Stevens  Point,4  58  Wis.  355,  368 ;  State 
v.  St.  Croix  Boom  Corp.,2  60  Wis.  570 ;  Union  Mill  Co. 
v.  Shores,2  66  Wis.  480 ;  Walton  v.  Green  Bay,  etc.,  Ry.,4 
70  Wis.  417 ;  Conn.  Co.  v.  L.  S.  Lumber  Mfg.  Co.,2  74 
Wis.  670;  McLennan  v.  Prentice,2  85  Wis.  442;  Priewe 
v.  Wis.  State  Land  &  Imp.  Co.,2  93  Wis.  546,  33  L.  R.  A. 
650 ;  Slauson  v.  Goodrich  Trans.  Co.,2  94  Wis.  645 ;  Ne- 
pre-nauk  Club  v.  Wilson,2  96  Wis.  295 ;  Mendota  Club  v. 
Anderson,2  101  Wis.  492;  McCarthy  v.  Murphy,2  119 
Wis.  162;  Murray  Hill  Co.  v.  Mil.,  etc.,  Co.,2  126  Wis. 
20,  21. 

It  has  been  cited  with  approval  outside  of  the  Supreme 
Court  of  Wisconsin,  as  follows :  Boardman  v.  Scott,2  102 
Ga.  404,  51  L.  R.  A.  181;  Fuller  v.  Shedd,2  161  111.  483, 
33  L.  R.  A.  158;  State  v.  Portsmouth,  etc.,  Bank,2  106 
Ind.  452;  Noyes  v.  Collins,2  92  la.  569,  26  L.  R.  A.  610; 
People  v.  Silberwood,2  110  Mich.  107,  32  L.  R.  A.  696; 
Lake  Sup.  Land  Co.  v.  Emerson,2  38  Minn.  408;  Lamp- 
rey v.  State,2  52  Minn.  195,  18  L.'R.  A.  677,  38  Am.  St. 
Rep.  547;  Concord  Co.  v.  Robertson,  etc.,  &  Co.,2  66  N. 
H.  18,  18  L.  R.  A.  689  and  note;  Gouverneur  v.  Nat.  Ice 
Co.,2  134  K  Y.  362,  18  L.  R.  A.  700,  30  Am.  St.  Rep. 
672;  Shaw  v.  Oswego  Iron  Co.,2  10  Ore.  382,  45  Am. 
Rep.  154;  Steam  Engine  Co.  v.  Steamship  Co.,2  12  R.  I. 
366 ;  Hayward  v.  Farmers  Mining  Co.,2  42  S.  C.  154,  28 
L.  R.  A.  52. 

It  has  been  cited  in  notes  to  the  following  cases  reported 
in  L.  R.  A.,  Am.  Dec.,  Am.  St.  Rep.,  and  Am.  &  Eng. 
Ry.  Cas.,  in  which  the  authorities  are  collected: 

Lawyers'  Reports  Annotated:  Case  v.  Loftus  (30  Fed. 


Opinions  of  Chief  Justice  Ryan.  484 

730),  5  L.  E.  A.  689;  Swanson  v.  Miss.  &  Rum  River 
Boom  Co.  (42  Minn.  532),  7  L.  R.  A.  673;  Lembeck  v. 
!N>e  (47  Oh.  St.  336),  8  L.  R.  A.  579 ;  State  ex  rel.  Denny 
v.  Bridges  (20  Wash.  146),  40  L.  R.  A.  597;  Madison  v. 
Mayers  (97  Wis.  399),  40  L.  R.  A.  637;  Willow  R  Club 
v.  Wade  (100  Wis.  86),  42  L.  R.  A.  318. 

American  Decisions:  State  v.  Trask  (6  Vt.  355),  27 
Am.  Dec.  568,  569;  Gardiner  v.  Tisdale  (2  Wis.  253), 
60  Am.  Dec.  422 ;  Walker  v.  Shepardson  (2  Wis.  384),  60 
Am.  Dec.  426 ;  Walker  v.  Shepardson  (4  Wis.  486),  65 
Am.  Dec.  330. 

American  State  Reports:  Miller  v.  Mendenhall  (43 
Minn.  95),  19  Am.  St.  Rep.  229,  233. 

American  &  English  Raliway  Cases:  Ry.  Co.  v.  Ren- 
wick  (102  U.  S.  180),  5  Am.  &  Eng.  Ry.  Gas.  94. 


485  Marsh  v.  Supervisors  of  Clark  County. 


Marsh  and  others  vs.  The  Board  of  Supervisors  of  Clark 
County  and  another. 

August  Term,  1877. 
(42  Wis.  502.) 

This  was  an  action  brought  against  the  Supervisors  of 
Clark  County  to  have  certain  taxes  assessed  in  1870  on 
certain  real  estate  belonging  to  the  plaintiffs  in  that  County 
and  also  the  sales  of  said  land  for  taxes  and  the  certifi- 
cates of  such  sales  declared  void,  and  to  restrain  the  issue 
of  tax  deeds  based  upon  such  sales.  The  statute  in  force 
at  the  time  the  taxes  were  levied,  being  chapter  130,  Laws 
of  1868,  provided,  among  other  things,  that  all  real  estate 
should  be  valued  by  the  assessor,  for  purposes  of  taxation, 
upon  actual  view,  and  that  the  assessor  in  arriving  at  the 
actual  value  of  such  real  estate  should  consider  the  advan- 
tage and  disadvantage  of  each  parcel,  according  to  its  lo- 
cation, quality  of  soil,  quantity  and  quality  of  timber,  etc. 
The  statute  also  required  the  assessor  upon  the  completion 
of  his  assessment  roll  to  annex  to  it  his  affidavit  stating 
in  detail  that  he  had  performed  his  duty  in  the  several 
particulars  enumerated  in  the  statute. 

It  appeared  at  the  trial,  without  dispute,  that  in  the 
above  mentioned  particulars  the  statute  was  not  complied 
with  by  the  assessor,  but  the  trial  court  found  that  the 
assessor  did  not  intentionally  or  fraudulently  make  a  dis- 
tinction in  the  assessment  of  the  property  in  question  be- 
longing to  the  plaintiffs,  who  were  non-residents,  and 
found  generally  against  the  plaintiffs.  From  the  judg- 
ment in  favor  of  the  Supervisors  of  Clark  County,  plaint- 
iffs appealed. 


Opinions  of  Chief  Justice  Ryan.  486 

The  opinion  hereinafter  set  out  by  Chief  Justice  Ryan 
contains  all  the  other  facts  material  to  an  understanding  of 
the  questions  discussed. 

The  following  are  the  propositions  of  law  decided: 

That  provision  of  our  state  constitution  which  declares 
that  the  rule  of  taxation  shall  be  uniform,  requires 
a  uniform  assessment  of  value ;  and  no  tax  upon  prop- 
erty can  be  supported  which  does  not  proceed  upon 
valid  assessment,  legally  made,  upon  a  uniform  rule. 

Violations  or  evasions  of  duty  imposed  by  law  to  secure 
a  just  and  uniform  rule  of  assessment,  whether  oc- 
curring by  mistake  in  law  or  by  fraud  in  fact,  which 
go  to  impair  the  general  equality  and  uniformity  of 
the  assessment,  and  thereby  to  defeat  the  uniform 
rule  of  taxation,  vitiate  the  wjiole  assessment  as  the 
foundation  of  a  valid  tax.  Kelly  v.  Corson,  11  Wis. 
1 ;  and  Miltimore  v.  Supervisors,  15  id.  9,  as  to  this 
point  overruled. 

Under  ch.  130,  Laws  of  1868,  the  act  of  the  assessor  in 
making,  and  annexing  to  and  filing  with  the  assess- 
ment roll,  an  affidavit  that  he  has  performed  his  stat- 
utory duty  in  the  several  particulars  there  enumer- 
ated, including  the  valuation  of  each  parcel  of  real 
property  from  actual  view  of  it,  is  essential  to  the 
validity  of  the  assessment;  and  when  such  affidavit 
has  not  been  made,  the  facts  which  should  appear  by 
it  can  not  be  shown  aliunde;  nor  can  the  rule  of  the 
statute  be  relaxed  by  showing  that  compliance  with  it 
was  impossible. 

Equity  will  restrain  the  issue  of  a  deed  upon  a  sale  of 
land  as  for  a  delinquent  tax,  where  there  was  no 
valid  assessment,  without  requiring  other  proof  of 
injury  to  the  plaintiff  from  the  pretended  tax. 


487  Marsh  v.  Supervisors  o/  Clark  County. 

Ryan,  Chief  Justice.  I.  Doubtless  taxes  are  a  debt 
due  to  the  state  by  its  citizens  for  protection  in  life,  lib- 
erty and  property.  Warden  v.  Supervisors,  14  Wis.  618. 
But  the  debt  is  liquidated  and  matures  only  upon  a  valid 
exercise  of  the  taxing  power.  Here,  the  exercise  of  the 
taxing  power  must  be  upon  a  uniform  rule ;  and  it  is  only 
upon  an  equal  assessment,  as  the  foundation  of  uniform 
apportionment,  that  the  taxing  power  can  be  put  in  oper- 
ation. The  statutes  of  the  states  generally  provide  for 
assessment,  as  "an  official  estimate  of  the  sums  which  are 
to  constitute  the  basis  of  an  apportionment  of  a  tax  be- 
tween the  individual  subjects  of  taxation;"  and,  when 
they  so  provide,  the  assessment  becomes  an  essential  part 
of  the  process  in  the  collection  of  taxes.  Cooley  on  Tax. 
ch.  XII.  But,  under  our  constitution,  the  assessment  is 
not  only  an  essential  part  of  the  process,  but  seems  to  be 
jurisdictional.  For  in  no  other  way  does  it  appear  pos- 
sible to  collect  taxes  upon  property  by  uniform  rule.  In- 
deed, the  constitution  so  clearly  implies  uniform  assess- 
ment of  values  as  an  essential  prerequisite  to  taxes  upon 
property,  that  it  is  not  unsafe  to  hold  that  the  constitution 
itself  makes  such  assessment  jurisdictional.  It  is  certainly 
so  by  statute.  And  such  a  tax,  to  be  valid  under  the  con- 
stitution, must  proceed  upon  a  regular,  fair  and  equal  as- 
sessment of  the  property  to  be  taxed,  made  by  the  officers, 
in  the  manner  and  with  the  securities  and  solemnities  pro- 
vided by  statute.  These  last  the  legislature  may  make  and 
alter  at  pleasure;  but  no  statute  can  dispense  with  assess- 
ment, or  with  its  essential  fairness  and  equality.  Smith 
v.  Cleveland,  17  Wis.  556.  For,  without  these,  taxes  can- 
not go  upon  a  uniform  rule.  The  uniformity  of  the  rule 
may  be  broken,  as  well  by  inequality  of  assessment  of  val- 
ues to  be  taxed,  as  by  inequality  of  rule  in  the  tax  itself. 


Opinions  o/  Chiej  Justice  Ryan.  488 

And  no  tax  upon  property  can  be  supported  which  does 
not  proceed  upon  valid  assessment,  legally  made  upon  uni- 
form rule. 

Of  course,  assessments  are  as  liable  to  error  as  other 
processes.  Assessors  may  commit  errors  of  judgment  and 
mistakes  of  fact.  So  that  these  are  exceptional  and  hap- 
pen in  good  faith,  not  affecting  the  principle  or  the  gen- 
eral equality  of  the  assessment,  they  will  not  vitiate  it. 
So  this  court  has  frequently  held.  Weeks  v.  Milwaukee, 
10  Wis.  263;  Dean  v.  Gleason,  16  id.  1;  Hersey  v.  Su- 
pervisors, id.  185 ;  Smith  v.  Smith,  19  id.  615.  But, 
as  will  be  seen  by  cases  cited  infra,  the  court  has  also  fre- 
quently held  that  violations  or  evasions  of  duty  imposed 
by  law  to  secure  a  just  and  uniform  rule  of  assessment, 
whether  occurring  by  mistake  in  law  or  by  fraud  in  fact, 
which  go  to  impair  the  general  equality  and  uniformity 
of  the  assessment,  and  thereby  to  defeat  the  uniform  rule 
of  taxation,  vitiate  the  whole  assessment  as  the  foundation 
of  a  valid  tax. 

It  is  with  a  view  to  the  general  justice  of  assessments, 
that  various  statutes  have  defined  the  duties  of  all  officers 
having  part  in  making  or  correcting  them.  And  it  is  time 
that  these  officers  should  be  reminded  of  the  language  of 
this  court,  in  the  first  case  upon  the  subject,  that  they  must 
not  disobey  positive  mandates  of  the  law  and  so  make  as- 
sessments in  their  own  wrong.  State  v.  Assessors,  1  Wis. 
345. 

These  views  seem  to  be  almost  self-evident.  The  prin- 
ciple on  which  they  rest  has  been  recognized  in  this  court, 
in  particular  cases,  by  mandamus  to  correct  errors  in  as- 
sessment rolls:  State  v.  Assessors,  supra;  State  v.  Super- 
visors, 3  Wis,  816;  State  v.  Portage,  12  id.  562;  8.  C., 
14  id.  550;  by  certiorari  to  review  the  action  of  boards 


489  Marsh  v.  Supervisors  of  Clark  County. 

of  review:  Milwaukee  I.  Co.  v.  Schubel,  29  Wis.  444; 
Spensley  v.  Valentine,  34  id.  154;  and  in  actions  turn- 
ing upon  alleged  abuses :  Head  v.  James,  13  Wis.  641 ; 
Janesville  v.  Markoe,  18  id.  350;  State  v.  Williston,  20 
id.  228 ;  Crane  v.  Janesville,  id.  305 ;  Lefferts  v.  Super- 
visors, 21  id.  688;  Curtis  v.  Supervisors,  22  id.  167; 
White  v.  Appleton,  id.  639 ;  Orton  v.  Noonan,  23  id.  102 ; 
Van  Slyke  v.  State,  id.  655  ;  Delorme  v.  Ferk,  24  id.  201 ; 
Ketchum  v.  Mukwa,  id.  103;  Wauwatosa  v.  Gunyon,  25 
id.  271 ;  Hamilton  v.  Fond  du  Lac,  id.  490 ;  8.  C.,  id.  496 ; 
Phillips  v.  Stevens  Point,  id.  594;  Orton  v.  Xoonan,  id. 
672 ;  Siegel  v.  Supervisors,  26  id.  70 ;  Merton  v.  Dolphin, 
28  id.  456;  Hale  v.  Kenosha,  29  id.  599;  Sprague  v. 
Coenen,  30  id.  209 ;  Dolan  v.  Trelevan,  31  id.  147 ;  Obe- 
rich  v.  Gilman,  id.  495 ;  Whittaker  v.  Janesville,  33  id. 
76 ;  State  v.  Gary,  id.  93 ;  Hersey  v.  Supervisors,  37  id. 
75;  Matteson  v.  Rosendale,  id.  254;  Massing  v.  Ames,  id. 
645 ;  Cramer  v.  Stone,  38  id.  259,  and  many  other  cases. 
From  such  of  these  cases  as  correct  or  give  relief  against 
errors  in  detail,  affecting  only  particular  property  in  the 
assessment,  it  appears  to  follow  logically  that  where  a 
valid  objection  is  common  to  all  or  much  of  the  property, 
or  goes  to  the  rule  or  to  the  whole  process  of  assessment, 
it  must  operate  to  avoid  the  whole  tax  levied  on  the  as- 
sessment. And  so  this  court  has  repeatedly  held.  Knowl- 
ton  v.  Supervisors,  9  Wis.  410 ;  Weeks  v.  Milwaukee,  10 
id.  242 ;  Mills  v.  Gleason,  11  id.  470 ;  Slauson  v.  Eacine, 
13  id.  398;  Warden  v.  Supervisors,  14  id.  618;  Knee- 
land  v.  Milwaukee,  15  id.  454;  Hersey  v.  Supervisors, 
16  id.  185;  Smith  v.  Smith,  19  id.  615;  Lefferts  v.  Su- 
pervisors, 21  id.  688;  Milwaukee  I.  Co.  v.  Hubbard,  29 
id.  51 ;  Hale  v.  Kenosha,  id.  599 ;  Dean  v.  Borchsenius,  30 
id.  236;  Oberich  v.  Gilman,  31  id.  495;  Whittaker  T. 


Opinions  of  Chief  Justice  Ryan.  490 

Janesville,  33  id.  76;  Hersey  v.  Supervisors,  37  id.  75, 
and  other  cases. 

It  would  be  tedious  and  unprofitable  to  review  these 
cases  in  detail.  The  general  principle  underlying  them 
all  has  been  already  sufficiently  explained.  They  under- 
take to  provide  a  rule  which  will  neither  tolerate  illegal 
and  oppressive  taxation  nor  defeat  the  collection  of  the 
public  revenue  for  technical  errors,  by  distinguishing  be- 
tween the  latter  and  objections  which  go  to  the  ground- 
work of  the  tax,  affecting  the  established  principle  of  tax- 
ation and  so  rendering  it  essentially  illegal.  Mills  v. 
Gleason ;  Warden  v.  Supervisors,  supra.  As  already  seen, 
the  groundwork  spoken  of  in  these  and  other  cases,  neces- 
sarily includes  a  valid  assessment,  made  in  substantial 
compliance  with  law,  and  proceeding  upon  a  just  and 
equal  rule  of  valuation.  This  appearing,  there  is  founda- 
tion so  far  to  support  a  tax.  Failing  this,  there  is  noth- 
ing for  a  tax  to  rest  upon ;  no  groundwork  or  foundation. 

There  are,  in  some  of  the  cases,  dicta  upon  the  distinc- 
tion between  formal  and  substantial  defects  in  assess- 
ments, which  may  not  be  wholly  consistent  with  the  gen- 
eral principle;  as  in  Hersey  v.  Supervisors,  16  Wis.  185; 
Dean  v.  Gleason,  id.  1;  Bond  v.  Kenosha,  17  id.  284;  and 
elsewhere.  But  we  are  able  to  recall  two  cases  only, 
where  the  judgment  of  the  court  at  all  conflicts  with  it. 
And  these  cases,  with  any  others  of  the  like  purport,  must 
be  considered  so  far  overruled. 

In  Kelly  v.  Corson,  11  Wis.  1,  it  appears  to  have  been 
held  that  a  mistake  in  law  by  the  supervisors,  acting  as  a 
board  of  equalization,  which  materially  affected  the  uni- 
form rule  of  assessment,  would  not  avoid  it,  because  it  was 
"an  error  of  judgment  upon  the  part  of  the  county  board, 
as  to  their  power  under  the  statute,  and  they  were  en- 


491  Marsh  v.  Supervisors  of  Clark  County- 

deavoring  in  good  faith  to  discharge  their  duties  accord- 
ing to  law."  But,  ignorantia  legis  neminem  excusat;  far 
less  an  officer  appointed  under  the  law  to  execute  quod 
quis  ieneiur  scire;  a  maxim  laid  up  among  the  earliest 
rudiments  of  the  law,  as  Story,  J.,  says  in  Arnold  v.  May- 
nard,  2  Story,  349.  The  rule  in  Kelley  v.  Corson  is  ob- 
viously an  inadvertence,  not  unnaturally  growing  out  of 
a  previous  decision  of  the  same  cause,  Kelley  v.  Corson,  8 
Wis.  182.  For  the  mistake  in  law  of  the  supervisors  in 
that  case  was  not  made  more  obviously  in  good  faith,  than 
the  mistake  in  law  of  the  common  council  held  to  be  fatal 
to  the  whole  assessment  in  Weeks  v.  Milwaukee,  supra, 
ever  since  followed,  and  decided  between  the  two  reports 
of  Kelley  v.  Corson. 

In  Knowlton  v.  Supervisors,  supra,  the  court  held  the 
assessment  and  the  tax  levied  upon  it  to  be  void,  for  vio- 
lation of  the  rule  of  uniformity,  in  favor  of  one  whose 
tax  appeared  to  be  greater  in  consequence  of  the  viola- 
tion. In  Miltimore  v.  Supervisors,  15  Wis.  9,  in  a  suit 
by  one  whose  tax  upon  the  same  tax  roll  appeared  to  be 
less  in  consequence  of  the  violation,  the  court  refused  to 
interfere,  "because  the  taxing  officers  demanded  of  her 
less  than  her  due  proportion  of  the  public  revenue."  But 
the  court  could  not  know  what  her  due  proportion  would 
be.  This  we  take  to  be  a  mistake  of  fact,  rather  than  of 
law,  such  as  might  have  excused  the  officers  in  Kelley  v. 
Corson,  but  cannot  excuse  the  rule  laid  down.  For,  grant- 
ing the  invalidity  of  the  assessment  upon  the  ground 
stated,  it  could  not  found  a  valid  tax  for  either  class  of 
persons.  There  was,  in  the  phrase  of  Mills  v.  Gleason, 
no  groundwork  for  a  tax,  and  therefore  no  tax.  The  void 
assessment  could  no  more  create  a  debt  or  obligation  for 
Miltimore  at  the  less  rate,  than  for  Knowlton  at  the 


Opinions  of  Chief  Justice  Ryan.  492 

greater  rate.  Failing  assessment,  the  tax  failed  as  a 
whole.  And  property  of  both  classes  still  remained  charge-1 
able,  not  yet  charged,  with  due  and  unliquidated  appor- 
tionment of  the  public  charges,  for  which  the  ineffectual 
attempt  at  taxation  had  been  made.  That  proportion  could 
be  ascertained  by  new  and  valid  assessment  only.  And 
in  advance  of  that,  it  was  inequitable  to  enforce  the  less 
as  the  greater  rate.  The  court  seems  to  have  held  the  un- 
lucky Miltimore  accountable  for  the  void  assessment,  and 
inclined  to  rebuke  her  constructive  effrontery  in  asking  re- 
lief against  it.  But  the  principle,  as  now  stated,  is  too 
certain  in  itself,  and  too  clearly  recognized  in  numerous 
cases,  to  suffer  any  doubt  from  these  or  other  exceptional 
cases;  far  less  from  mere  dicta  scattered  through  the  re- 
ports. A  valid  assessment  only  can  support  a  valid  tax. 

Following  closely  upon  the  decisions  of  this  court  above 
cited,  came  various  statutes  providing  for  reassessment 
and  retaxation,  both  in  cases  of  particular  and  of  general 
failure  of  previous  taxes.  Such  statutes  have  been  always 
upheld  by  this  court.  Tallman  v.  Janesville,  17  Wis.  71 ; 
Cross  v.  Milwaukee,  19  id.  509 ;  Dill  v.  Eoberts,  30  id. 
178;  Whittaker  v.  Janesville,  33  id.  76.  And  they  go 
further  and  more  directly  to  meet  the  dilemma  suggested 
in  Mills  v.  Gleason  and  Warden  v.  Supervisors,  than  any 
rule  which  this  court  has  power  to  adopt.  Except  when 
taxing  officers  are  afflicted  with  chronic  lawlessness,  they 
serve  to  secure  at  once  the  collection  of  the  public  revenue 
and  the  just  and  equal  taxation  of  property. 

The  assessments  in  the  towns  of  Lynn  and  Weston  in 
the  respondent  county,  in  question  here,  were  made  under 
ch.  130  of  1868.  That  statute  is  replete  with  provisions 
in  detail,  to  insure  an  equal  and  faithful  assessment  of  all 
property  subject  to  taxation.  It  requires  all  real  estate  to 


493  Marsh  v.  Supervisors  of  Clark  County* 

be  valued  by  assessors  upon  actual  view,  and  all  personal 
estate  upon  actual  view  as  far  as  practicable.  It  requires 
the  assessor,  in  the  valuation  of  real  estate,  to  consider  the 
advantage  and  disadvantage  of  each  parcel,  by  location, 
quality  of  soil,  quantity  and  quality  of  timber,  water,  etc. 
It  also  requires  each  assessor,  upon  the  completion  of  his 
assessment  roll,  to  annex  it  to  his  affidavit,  stating  in  de- 
tail that  he  has  performed  his  duty  in  several  enumerated 
particulars,  in  the  manner  prescribed  by  the  statute.  The 
affidavit  must  set  forth,  amongst  other  things,  that  the  as- 
sessor believes  the  assessment  roll  to  contain  a  complete 
list  of  all  real  property  liable  to  assessment;  the  name  of 
each  person  liable  to  personal  tax ;  that  he  has  valued  each 
parcel  of  realty  from  actual  view  of  it ;  that  he  has,  as  far 
as  practicable,  viewed  each  article  of  personal  property 
assessed;  and  that  each  valuation  is  the  full  value  which 
could  ordinarily  be  obtained  for  the  property  assessed,  and 
which  the  assessor  believes  that  the  owner,  if  disposed  to 
sell,  would  accept.  The  statute  goes  on  to  provide  that 
the  affidavit  so  made  and  annexed  shall  be  returned,  filed 
and  preserved  with  the  assessment  roll;  thus  apparently 
making  the  affidavit  essential  to  the  assessment  roll,  and 
indeed  a  part  of  it. 

It  is,  in  this  connection,  worthy  of  notice,  that  ch.  166 
of  1873  so  varies  the  oath  of  the  assessor  as  to  declare, 
alike  of  personal  and  real  property,  that  he  has  assessed 
them  upon  actual  view,  as  far  as  practicable,  only.  The 
assessment  passed  upon  in  Hersey  v.  Supervisors,  37  Wis. 
75,  was  made  under  the  act  of  1873. 

The  statute  is  a  just  and  wise  enactment  to  secure  the 
integrity  of  assessments,  and  so  to  fulfill  the  constitutional 
rule ;  quite  adequate  to  those  ends,  when  the  official  integ- 
rity of  assessors  reaches  the  standard  of  the  statute  under 


Opinions  of  Chief  Justice  Ryan.  494 

which  they  hold  their  offices.  The  policy  and  justice  of 
the  provisions  recited  are  obvious ;  and  it  would  be  idle  to 
enlarge  upon  their  necessity  to  such  just  and  equal  rule 
•of  assessment  as  will  satisfy  the  uniform,  rule  of  taxation. 
The  oath  required  of  assessors,  that  they  have  made  the 
assessment  in  strict  compliance  with  the  statute,  is  man- 
ifestly intended  to  secure  the  fundamental  rule  of  taxation 
against  indolence,  carelessness,  evasion  and  willfulness,  as 
well  as  against  partiality  and  fraud,  of  those  officers.  The 
affidavit  is  the  evidence,  and  the  only  evidence,  accompany- 
ing the  assessment,  that  values  have  been  arrived  at  justly 
and  properly,  in  compliance  with  the  statute,  and  to  fulfill 
the  rule  of  the  constitution.  And  the  affidavit  therefore 
appears  to  be  made  by  the  statute  of  the  substance,  and 
not  of  the  form,  of  the  assessment  roll. 

There  appears  to  be,  indeed,  no  other  check  upon  the 
conscience  of  the  assessor.  Few  other  ministerial  officers 
have  opportunity  to  disregard  a  great  constitutional  prin- 
ciple, or  to  violate  grave  private  rights,  with  so  much  im- 
punity. And  the  statute  therefore  puts  this  check  upon 
him,  bringing  his  official  duty  directly  to  the  test  of  his 
personal  truth  and  integrity.  An  assessor  who  has  faith- 
fully performed  his  duty,  as  the  statute  gives  it  to  him  to 
perform,  cannot  hesitate  to  make  the  affidavit.  An  as- 
sessor who  hesitates  to  make  the  affidavit,  hesitates  because 
he  has  not  performed  his  duty ;  because  he  has  not  followed 
the  process  given  by  the  statute,  to  secure  the  fair  and  uni- 
form rule  of  assessment  essential  to  a  just  and  constitu- 
tional tax.  In  other  words,  an  assessor  who  fails  to  make 
the  affidavit  impeaches  the  integrity  of  his  own  assessment. 

The  assessment  rolls  in  question  here,  in  both  of  these 
towns,  are  impeached  upon  their  face  by  want  of  the  stat- 
utory affidavit.  There  is  no  pretense  that  the  assessor  of 


495  Marsh  v.  Supervisors  of  Clark  County. 

the  town  of  Weston  ever  made  the  affidavit.  He  himself 
testifies  that  he  would  not  and  did  not  make  affidavit  that 
he  had  valued  each  parcel  of  real  estate  from  actual  view, 
because  it  would  not  have  been  true.  In  the  town  of  Lynn, 
a  paper  in  the  form  of  the  assessor's  statutory  affidavit 
was  at  some  time  annexed  to  the  assessment  roll;  at  what 
time,  may,  under  the  peculiar  evidence  of  the  assessor  and 
the  clerk  who  signed  the  jurat,  be  considered  doubtful.  It 
was  at  some  time  signed  by  the  assessor;  it  is  difficult  to 
say  when.  He  states  that  he  swore  to  it  before  the  clerk 
when  he  signed  it,  but  that  he  does  not  know  when  he 
signed  it.  The  clerk  testifies  that  the  assessor  made  oath 
to  the  affidavit  before  him,  but  does  not  state  at  what  time ; 
intending  probably  to  imply  that  the  oath  was  taken  when 
the  assessment  roll  was  returned.  He  positively  states, 
however,  that  he  himself  signed  the  jurat  to  the  affidavit 
several  years  after  the  levy  and  collection  of  the  tax. 
Taken  together,  this  is  evidence  of  a  very  suspicious  char- 
acter; the  more  so,  that  the  assessor's  testimony  in  the 
cause  shows  that  the  affidavit,  if  made,  would  have  been 
untrue.  It  may  well  be  doubted  whether  the  affidavit  was 
ever  made.  It  appears  plainly  enough  that  perjury  could 
not  be  well  assigned  on  the  affidavit,  upon  the  evidence  be- 
fore us.  Be  that  as  it  may,  certain  it  is  that,  when  the 
assessment  roll  was  returned,  when  the  tax  was  levied,  and 
when  the  tax  sale  took  place,  the  assessment  roll  had  no 
affidavit  annexed  to  it,  bore  no  evidence  that  the  assessor's 
affidavit  had  ever  been  made  to  verify  it.  It  rather  bore 
evidence,  perhaps,  in  the  unsigned  jurat,  that  this  assessor, 
like  the  other,  dare  not  make  the  affidavit. 

It  is  apparent  that  the  failure  of  an  assessor  to  annex 
his  affidavit  and  return  it  with  the  assessment  roll,  is  in 
disregard  of  a  material  provision  of  the  statute,  and  de>- 


Opinions  of  Chief  Justice  Ryan.  496 

feats  a  material  safeguard  provided  for  the  integrity  of 
the  assessment.  When  the  affidavit  is  omitted  in  fraud 
of  the  statute,  because  the  assessment  was  not  made  in 
compliance  with  the  statute,  as  is  the  case  here  beyond 
reasonable  doubt,  there  could  be  little  difficulty  in  holding 
the  assessment  void  for  the  want  of  it.  For  the  statute 
does  not  authorize  an  unverified  return,  and  the  assess- 
ment roll  is  prima  facie  positively  valid  or  void,  when  re- 
turned. And  the  verification  of  the  affidavit  cannot  be 
supplied  by  evidence  aliunde.  The  assessment  may  be 
impeached  by  evidence  aliunde,  against  the  affidavit,  when 
annexed.  Hersey  v.  Supervisors,  37  Wis.  75.  But  the 
affidavit  cannot  be  supplied.  Iverslie  v.  Spaulding,  32 
Wis.  394.  We  were  at  first  disposed  to  express  a  doubt, 
in  this  case,  whether,  when  the  affidavit  is  omitted  by  ac- 
cident, and  evidence  is  given,  to  supply  its  place  in  sup- 
port of  the  assessment,  that  it  was  made  in  good  faith,  in 
the  manner  which  the  affidavit  should  have  verified,  the 
assessment  might  not  be  upheld.  But  the  statute  author- 
izes no  assessment  roll  without  the  affidavit,  sanctions  none. 
And  it  is  dangerous  to  relax  statutory  rules  in  a  matter  so 
vital,  going  to  the  very  integrity  of  the  assessment  and  its 
compliance  with  the  constitution.  The  door,  once  opened 
to  cases  of  mere  mistake,  might  well  admit  cases  of  fraud 
wearing  the  disguise  of  mistake;  assuming  to  the  courts 
the  power  of  verifying  assessments,  which  the  assessors 
did  not  verify  for  themselves.  And,  after  very  mature 
consideration,  we  feel  bound  to  stand  upon  the  letter,  and 
what  we  believe  to  be  the  spirit,  of  the  statute  itself ;  and 
to  apply  the  rule  of  Iverslie  v.  Spaulding,  supra.  See 
also  Jarvis  v.  Silliman,  21  Wis.  599 ;  Matteson  v.  Rosen- 
dale,  37  id.  2.54;  and  Cotzhausen  v.  Kaeh^er  (42  Wis. 
332).  An  assessment,  not  verified  by  the  statutory  affi- 


497  Marsh  v.  Supervisors  of  Clark  County. 

davit  of  the  assessor,  cannot  be  otherwise  verified,  is  not 
within  the  statute,  and  is  valid  for  no  purpose. 

We  may  remark  that,  had  we  not  come  to  this  conclu- 
sion, we  should  have  found  no  difficulty  in  holding  void  the 
assessments  in  question  here,  under  the  rule  of  Hersey  v. 
Supervisors,  37  Wis.  75.  The  whole  process  of  the  as- 
sessors is  clearly  shown  by  their  own  testimony  to  have 
been  a  fraud  upon  the  statute. 

The  learned  counsel  of  the  respondent  contended  that, 
in  the  towns  in  question,  a  compliance  with  the  statute  is 
impossible;  and  there  is  evidence  in  the  case  supporting 
his  argument.  But  if  the  statute  prescribed  an  impossible 
duty,  courts  cannot  hold  the  duty  performed,  because  it  is 
impossible.  We  cannot  hold  an  assessment  valid,  because 
it  was  impossible  to  make  a  legal  assessment.  The  stat- 
ute is  peremptory,  taking  the  case  out  of  all  rule  of  what 
is  called  reasonable  construction.  We  cannot  interpolate 
exceptions  in  it.  Such  an  argument,  which  can  have  no 
force  with  courts,  ought  to  have  great  weight  with  the  legis- 
lature. It  was  probably  in  view  of  some  such  difficulty, 
that  the  affidavit  was  changed  by  the  statute  of  1873.  But 
we  surely  have  no  power  to  antedate  that  provision. 

And  we  have  no  choice  but  to  hold  that  no  legal  tax  was 
levied  on  the  lands  of  the  appellants  in  these  towns,  in  the 
year  in  question. 

IT.  In  such  a  case,  the  equitable  jurisdiction  of  the  cir- 
cuit courts  is  too  well  established,  by  repeated  adjudica- 
tion of  this  court,  to  be  in  any  doubt.  Dean  v.  Madison, 
9  Wis.  402;  Weeks  v.  Milwaukee,  10  id.  242;  Soens  v. 
Racine,  id.  271;  Mills  v.  Gleason,  11  id.  470;  Foster  v. 
Kenosha,  12  id.  616;  Rogers  v.  Milwaukee,  13  id.  610; 
Warden  v.  Supervisors,  14  id.  618 ;  Jenkins  v.  Super- 
visors, 15  id.  11 ;  Knowlton  v.  Supervisors,  id.  600 ;  Her- 


Opinions  of  Chief  Justice  Ryan.  498 

sey  v.  Supervisors,  16  id.  185 ;  Bond  v.  Kenosha,  17  id. 
284;  Myrick  v.  La  Crosse,  id.  442;  Mills  v.  Johnson,  id. 
598 ;  Smith  v.  Milwaukee,  18  id.  63 ;  Mitchell  v.  Mil- 
waukee, id.  92 ;  Kneeland  v.  Milwaukee,  id.  411 ;  Kiln- 
ball  v.  Ballard,  19  id.  601 ;  Wells  v.  Burnham,  20  id.  112 ; 
Crane  v.  Janesville,  id.  305;  Pierce  v.  Schutt,  id.  423; 
Howes  v.  Racine,  21  id.  514;  LefFerts  v.  Supervisors,  id. 
688;  May  v.  Holdridge,  23  id.  93;  Hamilton  v.  Fond 
du  Lac,  25  id.  490;  Siegel  v.  Supervisors,  26  id.  70;  Dean 
v.  Charlton,  27  id.  522;  Dean  v.  Borchsenius,  30  id.  236; 
Whittaker  v.  Janesville,  33  id.  76;  Quinney  v.  Stock- 
bridge,  id.  505;  Dayton  v.  Relf,  34  id.  86;  Morgan  v. 
Hammett,  id.  512 ;  Hersey  v.  Supervisors,  37  id.  75 ;  Mas- 
sing v.  Ames,  id.  645 ;  Pier  v.  Fond  du  Lac,  38  id.  470 ; 
Johnson  v.  Milwaukee,  40  id.  315 ;  and  many  other  cases. 

These  cases  establish  the  jurisdiction  of  courts  of  equity 
to  enjoin  the  issue  of  tax  deeds,  to  become  a  cloud  upon 
the  title,  which  are  about  to  issue  upon  tax  sales,  where, 
in  the  language  of  the  court,  the  groundwork  for  a  valid 
tax  is  wanting. 

The  learned  counsel  for  the  respondent  did  not  seriously 
question  the  general  jurisdiction.  He  denied  it  only,  as 
we  understood  him,  as  applicable  to  some  technical  objec- 
tions urged  in  this  case,  which  we  have  not  found  it  neces- 
sary to  notice. 

The  learned  counsel  also  pressed  upon  us  the  rule  that 
lie  who  seeks  equity,  should  do  equity ;  and  that  the  appel- 
lants should  pay  their  fair  taxes,  before  they  could  have  re- 
lief against  the  tax  sale.  And  he  insisted  that  the  ap- 
pellants could  not  have  relief  without  showing  injustice 
done  to  them  by  the  tax  for  which  the  deed  was  about  to 
issue.  We  should  not  of  course  question  either  of  these 
positions,  in  a  case  in  which  they  could  properly  arise. 


499         Note  to  Marsh  v.  Supervisors  of  Clark  County. 

The  difficulty  of  applying  either  rule  in  the  present  case 
is  obvious,  and  has  been  already  indicated.  The  trouble 
is  that  there  is  no  tax;  therefore  no  apportionment  of  the 
appellants'  share  of  a  tax.  It  is  thus  impossible  for  the 
appellants  or  for  the  court  to  say  what  would  be  their  pro- 
portion of  a  valid  tax.  And  it  is  surely  sufficient  injury, 
and  sufficiently  inequitable  to  support  this  suit,  that  a  tax 
deed  of  the  appellants'  land  will  issue,  unless  they  will 
pay  a  sum  as  a  tax,  for  which  no  tax  has  been  assessed. 
An  illegal  tax  is  none  the  less  illegal  because  it  may  hap- 
pen to  be  the  same  or  even  less  than  a  legal  tax  might  have 
been.  When,  as  in  this  case,  the  whole  assessment  is  a 
fraud  upon  the  law  and  an  evasion  of  the  constitution, 
every  exaction  of  a  tax  purporting  to  be  levied  upon  it,  is 
a  wrong;  an  unlawful  exaction  of  money,  not  legally  or 
equitably  payable,  under  false  color  of  a  legal  proceeding. 

This  appeal  and  several  kindred  appeals  submitted  with 
it,  were  argued  by  the  counsel  on  both  sides  with  learning 
and  ability  which  greatly  aided  us  in  considering  them. 
We  regret  to  add  that  all  of  the  cases  in  them  were  printed 
and  presented  in  entire  disregard  of  the  rule;  so  as  to  be 
rather  a  hindrance  than  a  help  in  the  examination  of  the 
facts.  For  this  reason,  no  allowance  must  be  taxed  for 
any  of  the  printed  cases  in  this  and  the  kindred  appeals. 

By  the  Court. — The  judgment  is  reversed,  and  the 
cause  remanded  to  the  court  below  with  directions  to  ren- 
der judgment  according  to  the  prayer  of  the  complaint. 

NOTE. 

(Each  case  in  this  note  after  which  is  placed  the  figure 
(2)  relates  to  the  subject  discussed  in  the  foregoing  opin- 
ion, numbered  II.  The  other  cases  relate  to  the  questions 
considered  in  the  other  portion  of  the  opinion). 

Marsh  v.  Supervisors  of  Clark  County,  supra,  has  been 


Opinions  of  Chief  Justice  Ryan.  500 

cited  with  approval  in  the  Wisconsin  Supreme  Court,  as 
follows :  Philleo  v.  Hiles  and  others,1  42  Wis.  530 ;  Schett- 
tler  v.  City  of  Fort  Howard,1  43  Wis.,  49,  51;  Goff  v. 
Supervisors  of  Outagamie  County,1  43  Wis.  59;  Green 
Bay  &  Miss.  Canal  Co.  v.  Sup'rs  of  Clark  County,1  43 
Wis.  254;  Mclntyre  v.  Town  of  White  Creek,1-  2  43  Wis. 
627;  Hart  v.  Smith,1  44  Wis.  217;  Salscheider  v.  City 
of  Fort  Howard,1  45  Wis.  521 ;  Bound  v.  Wis.  Central 
Ky.,2  45  Wis.  566;  Plumer  v.  Board  of  Sup'rs  of  Mara- 
thon County,1-  2  46  Wis.  175,  177,  179,  181,  182,  183 ; 
Oconto  Co.  v.  Jerrard,1  46  Wis.  324,  325;  Tierney  v. 
Union  Lumbering  Co.,1  47  Wis.  250 ;  Southmayd  v. 
Watertown  Fire  Ins.  Co.,1  47  Wis.  522 ;  Flanders  v.  Town 
of  Merrimack,1  48  Wis.  568,  569;  Scheiber  v.  Kaehler,1 
49  Wis.  301 ;  Pier  v.  Fond  du  Lac  County,2  53  Wis.  429  ; 
Branns  v.  City  of  Green  Bay,1  55  Wis.  115 ;  Bradley  v. 
Lincoln  County,1  60  Wis.  73,  75 ;  Bass  v.  Fond  du  Lac,1 
60  Wis.  521;  Baker  v.  City  of  Madison,2  62  Wis.  153; 
Fifield  v.  Marinette  County,1  62  Wis.  535,  537,  539; 
Beebe  v.  Marinette  County,1  62  Wis.  535,  537,  539 ;  Rug- 
gles  v.  Fond  du  Lac  County,1  63  Wis.  210;  Wisconsin 
Central  Ry.  v.  Lincoln  County  and  others,1  67  Wis.  481; 
Semple  v.  Langlade  County,2  75  Wis.  .358 ;  Hixon  v. 
Oneida  County,2  82  Wis.  531 ;  Hayes  v.  Douglas  County,1 
92  Wis.  444,  31  L.  R.  A.  218;  Wells  v.  W.  P.  &  S.  Co.,2 
96  Wis.  120. 

It  has  been  cited  with  approval  outside  of  the  Wiscon- 
sin Supreme  Court,  as  follows:  Re  Page,1  60  Kan.  842; 
47  L.  R.  A.  70;  State  ex  rel.  Harvey  v.  Cook,1  82  Mo. 
188;  State  ex  rel.  Lewellen  v.  Schooley,1  84  Mo.  451; 
Brevoort  v.  City  of  Brooklyn,1  89  K  Y.  134;  Peck  v. 
Comstock,1  6  Fed.  24,  25 ;  Griggs  -y.  St.  Croix  Co.,1  20 
Fed.  342. 

Marsh  v.  Supervisors,  supra,  has  been  cited  in  notes  to 
the  following  cases  in  L.  R.  A.,  Am.  Dec.,  Am.  &  Eng. 
Ry.  Cas.,  and  the  Nat.  and  Fed.  Rep.,  including  valuable 
collections  of  authorities : 

Lawyers'  Reports  Annotated:  State  ex  rel.  McCardy  v. 
Nelson  (41  Minn.  25),  4  L.  R.  A.  300;  Chester  v.  Black 


501         Note  to  Marsh  v.  Supervisors  of  Clark  County. 

(132  Pa.  St.  568),  6  L.  E.  A.  802;  Russell  v.  Tate  (52 
Ark.  541),  7  L.  R.  A.  182;  West  v.  People's  Bank  (67 
Miss.  729),  8  L.  R  A.  729 ;  Miller  v.  Cook  (135  111.  190), 
10  L.  R  A.  293 ;  Odlin  v.  Woodruff  (31  Fla.  160),  22  L. 
R.  A.  705,  706,  707. 

American  Decisions:  Holland  v.  Mayor  of  Baltimore 
(11  Md.  186),  69  Am.  Dec.  261;  Mills  v.  Gleason  (11 
Wis.  470),  78  Am.  Dec.  729;  Hersey  v.  Bd.  of  Sup'rs 
(16  Wis.  185),  82  Am.  Dec.  719;  Kimball  v.  Ballard  (19 
Wis.  601),  88  Am.  Dec.  707;  Smith  i;.  Smith  (19  Wis. 
615),  88  Am.  Dec.  711. 

American  &  English  Railway  Cases:  County  of  San 
Mateo  v.  So.  P.  Ry.  Co.  (8  II.  S.  Ct.  Rep.  9th  Cir.  238), 
8  Am.  &  Eng.  Ry.  Cas.  58 ;  Worth  v.  W.  &  W.  Ry.  Co. 
(89  K  C.  291),  13  Am.  &  Eng.  Ry.  Cas.  293. 

Federal  Reports:  "Head  Money"  Cases,  18  Fed.  145; 
foot-note  5 ;  Guthrie  v.  Harker,  27  Fed.  589 ;  R.  I.  B.  & 
M.  Co.  v.  County  of  Otoe,  27  Fed.  806. 

National  Reporters:  1  Atl.  645;  25  N.  W.  125;  25  K 
W.  855 ;  2  K  E.  861. 


Opinions  of  Chief  Justice  Ryan.  602 


Dorsey  vs./The  Phillips  &  Colby  Construction  Company. 

August  Term,  1877. 
(42  Wis.  583.) 

This  was  an  action  brought  by  the  plaintiff  against  the 
defendant  company  to  recover  damages  for  injuries  sus- 
tained by  the  plaintiff  while  in  defendant's  employ  as  the 
conductor  of  a  freight  train  upon  its  railroad. 

Plaintiff  was  injured,  while  climbing 'up  a  ladder  on 
the  side  of  one  of  the  cars  on  defendant's  road  in  the  dis- 
charge of  his  duties,  by  being  swept  from  the  side  of  the 
car  by  a  cattle  chute  at  a  station  on  defendant's  road. 

The  cattle  chute,  it  appeared  from  the  testimony,  was 
so  near  the  track  that  a  person  climbing  or  standing  on  the 
ladder  on  the  side  of  the  freight  car  when  the  car  passed 
the  chute  would  be  certain  to  be  swept  from  the  car.  Had 
the  chute  been  located  a  foot  further  from  the  track  the 
danger  would  have  been  obviated.  Plaintiff  had  been 
in  defendant's  employ  for  some  time,  had  frequently 
passed  the  same  station,  knew  in  a  general  way  of  the  ex- 
istence of  the  chute,  but  did  not  know  its  exact  location  in 
reference  to  the  track. 

There  was  a  special  verdict  and  judgment  for  plaintiff 
thereon  for  $5,000  damages.  The  defendant  company 
appealed.  The  appellant  was  represented  by  Mr.  Dixon, 
foriner  chief  justice  of  the  court,  and  the  opinion  hereafter 
set  out  was  rendered  by  Chief  Justice  Ryan  upon  such 
appeal. 

The  other  material  facts  appear  from  the  opinion. 


603  Dorse^  v.  Phillips,  Colby  Const.  Co. 

The  following  propositions  of  law  were  decided: 

[Whether  a  uniform  custom  of  railroad  companies  to  use 
structures  unnecessarily  dangerous  to  persons  in  their 
employ  would  excuse  the  danger,  quaere.  Upon  the 
evidence  in  this  case,  it  was  a  question  for  the  jury, 
whether  there  is  a  universal  or  general  custom  of 
such  companies  to  build  cattle  chutes  as  near  to  the 
track  as  was  that  which  is  alleged  to  have  caused  the 
injury  here  complained  of. 

If  plaintiff  knew,  or  ought  reasonably  to  have  known, 
the  precise  danger  to  him  of  the  cattle  chute  in  ques- 
tion, and  still  continued  in  his  employment,  he  might 
be  held  to  have  assumed  the  extraordinary  risk  thus 
created;  but  this  consequence  of  acquiescence  must 
rest  upon  positive  knowledge,  or  reasonable  means  of 
positive  knowledge,  of  the  precise  danger  assumed, 
and  not  on  vague  surmises  of  the  possibility  of  dan- 
ger. And,  upon  the  evidence  in  this  case,  it  was  for 
the  jury  to  determine  whether  he  had,  or  ought  to 
have  had,  such  knowledge. 

The  question  of  plaintiff's  contributory  negligence,  be- 
ing fairly  debatable  upon  the  evidence,  was  also  for 
the  jury. 

The  refusal  of  an  instruction  asked  by  the  defendant, 
going  upon  the  theory  that,  if  plaintiff  had,  in  the 
course  of  his  employment  (as  a  conductor  on  one  of 
defendant's  freight  trains),  sufficient  opportunity  to 
know  the  general  position  of  the  cattle  chute,  he  was 
charged  with  knowledge  of  its  dangerous  character, 
was  not  error;  such  mere  general  knowledge,  with- 
out opportunity  for  accurate  knowledge,  not  being 
sufficient  to  so  charge  him. 


Opinions  of  Chief  Justice  Ryan.  504 

A  judgment  will  not  be  reversed  for  an  instruction,  in- 
correct in  itself,  so  given  or  qualified  that  it  could 
not  mislead  the  jury;  nor  because  the  charge  is  not 
so  full  as  might  have  been  desirable  upon  some  point 
on  which  the  appellant  did  not  ask  an  instruction. 

The  jury  found  specially  a  negative  answer  to  the 
question,  whether  plaintiff  knew  or  had  means  of 
knowing  "the  existence  and  location  of  the  cattle 
chute  in  question."  Held,  that  both  the  words,  ex- 
istence and  location,  being  used  in  the  question,  it 
must  be  taken  to  refer  to  exact  location  or  distance 
from  the  track;  and  the  verdict  is  sustained  by  the 
evidence,  although  it  clearly  appears  from  plaintiff's 
own  testimony  that  he  had  a  general  knowledge  of 
the  existence  of  the  cattle  chute. 

Ryan,  Chief  Justice.  I.  The  nonsuit  was  properly  de- 
nied. The  case  was  one  for  the  jury  on  all  the  points 
made. 

First:  Of  the  appellant's  negligence. — If  a  uniform 
custom  of  railroad  companies  to  use  structures  unnecessa- 
rily dangerous  to  persons  employed  in  operating  trains,  had 
been  proved,  we  should  hesitate  gravely  before  holding  that 
the  custom  could  excuse  the  danger.  A  positive  acqui- 
escence, scienter,  of  one  so  employed,  might  indeed  take 
away  his  right  of  action  for  injury  incurred  by  such  a 
structure.  But  there  is  public  as  well  as  private  interest. 
The  operation  of  railroad  trains  is  essentially  highly  dan- 
gerous, and  it  is  a  duty  of  railroad  companies,  too  plain 
for  discussion,  to  use  all  reasonable  skill  to  mitigate,  tol- 
erating nothing  to  aggravate,  the  necessary  danger.  This 
is  not  merely  a  private  duty  to  individuals  concerned,  but 
a  public  duty  to  the  state,  concerned  in  the  welfare  of  its 


505  Dorsey  v.  Phillips,  Colby  Const.  Co. 

citizens.  And  no  custom,  however  uniform  or  universal, 
which  unnecessarily  exposes  railroad  employees  to  loss  of 
life  or  limb,  would  seem  to  satisfy  a  duty  which  may  be 
regarded  as  an  implied  condition  of  their  charters.  We 
use  the  word  unnecessary,  advisedly;  distinguishing  ne- 
cessity from  convenience.  A  convenience  may  be  so  great 
as  to  be  regarded  as  a  practical  necessity.  But  a  conve- 
nience merely  to  lessen  a  little  the  labor  of  driving  cattle 
into  cars  can  hardly  rank  as  a  necessity,  or  excuse  such 
proximity  of  cattle  chutes  to  the  track  as  to  jeopardize  life 
and  limb  of  persons  operating  trains. 

But  we  need  not  pursue  this  inquiry.  For  a  careful 
examination  of  the  evidence  has  satisfied  us  that  no  such 
custom  is  established ;  much  if  not  all  of  the  evidence  on 
both  sides  tending  to  show  that  no  uniform  custom  exists. 
It  rather  appears  to  be  a  fair  conclusion  from  the  evidence, 
as  far  as  it  goes,  that  cattle  chutes  are  built  at  varying  dis- 
tances from  the  track,  according  to  varying  notions  of  con- 
venience of  use  in  driving  cattle  into  cars.  So  far  as  a 
custom  is  involved  in  the  case,  it  was  a  question  for  the 
jury.  The  evidence  affords  no  warrant  for  holding,  as  a 
matter  of  law,  that  the  custom  relied  on  by  the  appellant 
is  established. 

And  there  certainly  was  evidence  to  go  to  the  jury,  of 
the  dangerous  proximity  to  the  railroad  of  the  cattle  chute 
in  question ;  enough,  in  our  judgment,  to  warrant  the  find- 
ing that  it  was  unnecessarily  dangerous.  We  do  not  pro- 
pose to  review  the  evidence.  But  there  is  a  presumption 
of  fact  running  through  the  whole  printed  case,  that  the 
structure  was  positively  dangerous  to  operatives  on  mov- 
ing trains,  whose  duty  might  take  them  to  car  ladders  on 
that  side ;  and  that  its  dangerous  relation  to  the  track  was 
•due  to  one  of  two  causes.  It  may  be  that  the  cattle  chute 


Opinions  of  Chief  Justice  Ryan.  506 

was  constructed  with  a  view  to  the  exclusive  use  of  cars 
having  ladders  on  the  ends  only;  in  which  case  it  might 
have  involved  no  special  danger.  In  that  view,  it  might 
have  become  dangerous  by  the  use  of  cars  having  ladders 
on  their  sides  only.  The  use  of  cars  of  the  latter  descrip- 
tion, assuming  the  consequent  danger  of  the  cattle  chute, 
made  it  an  immediate  duty  to  remove  the  cattle  chute  or 
change  its  structure.  It  may  be  that  it  was  built  with  a 
view  to  the  use  of  cars  of  both  descriptions.  In  that  case, 
its  dangerous  relation  to  the  track  was  due  to  a  paltry  con- 
venience, furnishing  no  color  of  legal  excuse.  A  greater 
distance  from  the  track  might  have  made  it  more  trouble- 
some to  load  cattle  from  it,  but  would  have  insured  oper- 
atives of  the  road  from  danger  of  life  and  limb.  Human 
life  is  too  precious  in  the  eye  of  the  law  to  be  so  lightly 
hazarded.  Railroad  companies  owe  a  higher  measure  of 
duty  to  those  who  operate  their  trains,  and  to  the  public. 

Second:  Of  the  respondent's  acquiescence. — If  he  knew, 
or  ought  reasonably  to  have  known,  the  precise  danger  to 
him,  in  the  course  of  his  employment,  of  the  cattle  chute 
in  question,  and  saw  fit,  notwithstanding,  to  continue  in 
his  employment,  he  might  be  held  to  have  assumed  the 
extraordinary  risk,  as  well  as  the  ordinary  risks,  of  his 
service.  The  authorities  cited  by  the  learned  counsel  for 
the  appellant  all  agree  in  the  general  proposition.  But  it 
appears  to  us  that  this  consequence  of  acquiescence  ought 
to  rest  upon  positive  knowledge,  or  reasonable  means  of 
positive  knowledge,  of  the  precise  danger  assumed ;  not  on 
vague  surmise  of  the  possibility  of  danger.  And  there 
might  be  serious  difficulty  in  applying  the  principle  to  a 
case  like  this. 

The  safety  of  railroad  trains  depends  largely  upon  the 
exclusive  attention  of  those  operating  them,  to  the  track, 


507  Dorse?  v.  Phillips,  Colby  Const.  Co. 

and  to  the  trains  themselves.  It  is  not  for  the  interest  of 
railroad  companies,  or  of  the  public — with  like,  if  not 
equal,  concern  in  the  safety  of  trains — that  persons  so  em- 
ployed should  be  charged  with  any  duty  or  necessity  to 
divert  their  attention.  And  it  appears  to  us  very  doubtful 
whether  persons  operating  railroad  trains,  and  passing 
adjacent  objects  in  rapid  motion,  with  their  attention  fixed 
upon  their  duties,  ought,  without  express  proof  or  knowl- 
edge, to  be  charged  with  notice  of  the  precise  relation  of 
such  objects  to  the  track.  And  even  with  actual  notice  of 
the  dangerous  proximity  of  adjacent  objects,  it  may  well 
be  doubted  whether  it  would  be  reasonable  to  expect  them, 
while  engaged  in  their  duties,  to  retain  constantly  in  their 
minds  an  accurate  profile  of  the  route  of  their  employ- 
ment, and  of  collateral  places  and  things,  so  as  to  be  al- 
ways chargeable,  as  well  by  night  as  by  day,  with  notice 
of  the  precise  relation  of  the  train  to  adjacent  objects.  In 
the  case  of  objects  so  near  the  track  as  to  be  possibly  dan- 
gerous, such  a  course  might  well  divert  their  attention 
from  their  duty  on  the  train,  to  their  own  safety  in  per- 
forming it.  Notwithstanding  some  things  said  in  some 
cases  cited  for  the  appellant,  we  should  be  rather  inclined 
to  think  that,  in  the  absence  of  express  notice  of  immedi- 
ate danger,  employees  operating  trains  may  perform  their 
duties  under  an  implied  warrant  that  they  may  do  so  with- 
out exposing  themselves  to  extraordinary  danger;  that  is, 
danger  not  necessarily  incident  to  the  course  of  their  em- 
ployment. 

Be  that  as  it  may,  the  question  can  not  well  be  consid- 
ered as  arising  here.  For  though  it  certainly  appears  that 
the  respondent  know  of  the  general  relation  of  the  cattle 
chute  to  the  track,  it  does  not  appear  that  he  knew,  or  had 
such  means  of  information  as  would  charge  him  with 


Opinions  of  Chief  Justice  Ryan.  508 

knowing,  its  precise  relation  to  the  track,  its  distance  and 
its  danger.  There  is  indeed  evidence  tending  to  show  that 
he  had  some  impression  of  its  dangerous  proximity;  per- 
haps not  more  than  the  vague  idea  of  danger  suggested  by 
adjacent  objects  generally.  Even  this  we  understand  him 
to  deny.  The  court  could  not  say,  as  matter  of  law,  that 
he  knew  of  the  extraordinary  danger,  and  continued  his 
employment  at  his  own  risk  of  it.  There  was  enough  in 
the  evidence  to  make  his  knowledge  and  .acquiescence  a 
proper  question  for  the  jury. 

Third:  Of  the  respondent's  contributing  negligence.— 
"What  constitutes  negligence,  or  that  want  of  care  on  the 
part  of  the  person  receiving  the  injury,  which  deprives 
him  of  any  remedy,  and  neutralizes,  as  it  were,  the  wrong 
of  the  party  by  whom  the  injury  is  inflicted,  is  a  question 
depending  on  various  circumstances.  What  may  be  negli- 
gence under  some  circumstances  and  conditions,  may  not 
under  others.  As  observed  by  counsel,  it  is  not  a  fact 
to  be  testified  to,  but  can  only  be  inferred  from  the  res 
gestae — from  the  facts  given  in  evidence.  Hence  it  may, 
in  general,  be  said  to  be  a  conclusion  of  fact  to  be  drawn 
by  the  jury  under  proper  instructions  from  the  court.  It 
is  always  so  where  the  facts,  or  rather  the  conclusion  is 
fairly  debatable,  or  rests  in  doubt.  It  is  only  where  there 
is  an  entire  absence  of  evidence  tending  to  establish  the 
case,  or  where,  as  in  Achtenhagen  v.  Watertown,  18  Wis. 
331,  the  negligence  of  the  party  injured  or  killed  is  affirm- 
atively and  clearly  proved  by  the  plaintiff,  so  as  to  admit 
of  no  doubt  or  controversy,  that  a  nonsuit  may  properly 
be  ordered."  Langhoff  v.  Railway  Co.,  19  Wis.  489. 

Under  this  rule,  it  appears  quite  manifest  that  the  court 
could  not  hold  the  respondent,  as  matter  of  law,  guilty  of 
contributory  negligence.  It  was  a  question  for  the  jury 


509  Dorse^  v.  Phillips,  Colby  Const.  Co. 

whether,  under  all  the  circumstances,  he  could  have  avoided 
the  accident  by  the  exercise  of  reasonable  care.  His  gen- 
eral knowledge  of  the  position  and  danger  of  the  cattle 
chute,  his  means  of  knowledge,  at  the  time,  of  its  near- 
ness to  him,  his  necessity  of  being  where  he  was  when  he 
was  injured,  and  his  care  or  want  of  care  for  his  own 
safety,  under  all  the  circumstances,  were  proper  questions 
for  the  jury. 

There  is  evidence  tending  to  show  that  all  collateral  ob- 
jects which  could  make  the  ascent  and  descent  of  the  car 
ladders  dangerous,  were  on  the  outside  of  the  track,  and 
that  the  inside  was  free  from  such  objects.  Such  ad- 
jacent objects  on  the  outside  certainly  implied  possible 
danger,  rendering  the  inside  of  the  track  safer.  And  it  is 
remarkable  that  persons  engaged  in  operating  trains  there 
should  not  confine  themselves  to  that  side.  It  might  per- 
haps be  difficult  to  account  for  it,  except  upon  the  view 
that  familiar  dangers  lose  their  terror.  But  there  is  also 
evidence  tending  to  show  that  the  respondent  could  not 
well  have  discharged  the  duty  in  which  he  was  engaged, 
on  the  inside  ladder,  at  the  other  end  of  the  car.  Under 
a  sudden  pressure  of  duty,  we  cannot  say  that  the  respond- 
ent was  bound  to  exercise  the  same  measure  of  judgment 
which  we  do  now  in  reviewing  his  conduct.  That  would 
appear  to  require  of  him  a  deliberation  and  circumspec- 
tion which  the  necessity  of  his  duty  might  preclude. 
"What  may  be  negligence  under  some  circumstances  and 
conditions,  may  not  under  others."  The  question  of  his 
negligence  "is  fairly  debatable,  and  rests  in  doubt."  It 
was  submitted  to  the  jury,  and  there  certainly  is  evi- 
dence to  support  the  verdict.  We  cannot  reverse  their  con- 
clusion, even  though  we  were  inclined  to  come  to  a  dif- 
ferent one. 


Opinions  of  Chief  Justice  Ryan.  510. 

II.  The  difficulty  which  pervades  the  views  taken  for 
the  appellant  throughout,  enters  into  the  only  instruction 
asked.     It  goes  upon  the  theory  that  if  the  respondent  had, 
in  the  course  of  his  employment,  sufficient  opportunity  to 
know  the  general  position  of  the  cattle  chute,   he  was 
charged  with  knowledge  of  its  dangerous  character.     We 
have  sufficiently  indicated  our  dissent  from  this.    We  think 
that  it  is  contrary  to  the  experience  of  human  life,  that 
one,  knowing  generally  of  a  thing,  without  opportunity  of 
ascertaining  its  precise  relations  and  conditions,  is  to  be 
charged  with  notice  of  them.     And  the  instruction,  which 
goes  upon  general  knowledge  only,  and  ignores  all  oppor- 
tunity of  accurate  knowledge,  to  charge  the  respondent 
with  notice  of  the  dangerous  proximity  of  the  cattle  chute 
to  the  track,  was  properly  refused. 

III.  Exceptions   were   taken   to   two  passages   of   the 
charge,  which  were  made  the  subject  of  criticism  here. 
Either  would  be  sufficiently  erroneous,  considered  by  it- 
self, to  reverse  the  judgment.     But  it  is  our  duty  to  con- 
sider them  in  connection  with  the  whole  charge,  and  to 
determine  whether  they  could  mislead  the  jury.     This 
court  always  reverses  upon  a  charge  correct  in  law,  but  so 
given  that  it  might  mislead  the  jury;  and  affirms  upon  a 
charge  incorrect  in  itself,  but  so  given  or  qualified  that  it 
could  not  mislead  the  jury. 

The  first  passage  of  the  charge  in  this  case  to  which  ob- 
jection is  taken,  is  the  statement  that  the  employment  and 
injury  of  the  respondent  at  the  time  and  in  the  manner 
claimed  by  him,  were  admitted  by  the  appellant.  It  is 
claimed  that  this  imports  the  appellant's  admission  of  the 
respondent's  right  of  recovery.  But  the  charge  proceeds 
immediately  to  state  the  grounds  of  the  defense  at  large. 
And,  taken  in  connection  with  what  follows,  the  sentence 


511  Dorse?  v.  Phillips,  Colby  Const.  Co. 

complained  of  imports  no  more  than  that  the  respondent's 
employment  and  his  actual  injury  were  not  denied  upon 
the  trial,  as  appears  to  have  been  the  truth.  We  cannot 
doubt  that  it  must  have  been  so  understood  by  the  jury. 

The  second  passage  is  to  the  effect  that,  if  the  respond- 
ent had  no  knowledge,  or  means  of  knowledge,  of  the  cattle 
chute  and  its  danger,  he  must  recover.  The  learned  judge 
was  explaining  to  the  jury  what  knowledge  of  the  cattle 
chute  was  necessary  to  charge  the  respondent  with  acqui- 
escence in  its  danger.  Elsewhere  in  the  charge,  all  the  con- 
ditions necessary  to  the  respondent's  recovery  are  stated. 
And,  in  the  light  of  the  whole  charge,  the  passage  in  ques- 
tion signifies  but  this:  that,  on  the  question  immediately 
under  consideration,  the  want  of  knowledge  on  the  part  of 
the  respondent  stated  would  not,  so  far,  defeat  his  right 
to  recover. 

Neither  passage  could  have  misled  the  jury.  The  gen- 
eral charge  is  too  full  and  too  clear. 

The  charge  of  the  court  below,  quite  full  on  other  points, 
contains  no  very  specific  instruction  on  the  doctrine  of 
contributory  negligence.  We  must  confess  that,  if  the 
doctrine  of  contributory  negligence  had  been  given  to  the 
jury,  the  verdict  would  have  been  more  satisfactory  to  us. 
But  if  the  appellant  had  desired  it,  it  was  incumbent  on 
it  to  pray  for  proper  instruction.  And  we  cannot  reverse 
a  judgment  because,  on  some  point,  the  charge  is  not  so 
full  as  might  have  been  desirable. 

IV.  The  verdict  of  the  jury  gave  us  more  trouble  than 
the  rulings  of  the  court. 

The  statute  authorizing  special  verdicts  appears  de- 
signed to  guard  against  willful  or  mistaken  verdicts,  and 
to  enable  the  court  to  review  the  precise  grounds  on  which 
verdicts  are  found.  And  we  have  lately,  more  than  once, 


Opinions  of  Chief  Justice  Ryan.  512 

reversed  judgments  upon  apparently  willful  or  evasive  ver- 
dicts. 

In  the  verdict  before  us,  the  jury  found  that  the  re- 
spondent did  not  know  of  the  dangerous  proximity  of  the 
cattle  chute  to  the  track.  They  also  found  that  he  did  not 
know,  and  had  no  means  of  knowing,  "the  existence  and 
location  of  the  cattle  chute  in  question,  with  reference  to 
the  side  of  the  track." 

If  this  answer  could  import  that  the  respondent  had  no 
general  knowledge,  it  would  be  clearly  inconsistent  with 
the  evidence.  And  the  finding  that  he  had  no  knowledge 
of  the  danger  of  the  cattle  chute  might,  in  that  case,  well 
rest  upon  the  finding  that  he  had  no  knowledge  of  it  at  all. 
If  such  were  the  construction  of  the  verdict,  it  could  not 
be  supported.  And  we  confess  that  such  was  our  first  im- 
pression. 

If  the  question  put  to  the  jury  had  been  confined  to  the 
location  of  the  structure  with  reference  to  the  track,  we 
might  probably  have  had  no  difficulty  in  holding  that  the 
question  called  only  for  his  knowledge  of  the  general  rela- 
tion of  the  cattle  chute  to  the  track;  the  word,  location, 
not  necessarily  implying  their  exact  relation.  The  ques- 
tion would  then  have  had  substantially  the  same  meaning 
as  if  it  had  inquired  only  of  the  existence  of  the  cattle 
chute  in  reference  to  the  track.  But  both  words  are  used, 
and  effect  must  be  given  to  each.  Location,  by  itself,  as 
used  in  the  question,  would  have  imported  substantially 
the  same  aa  existence,  by  itself.  Each  word  being  used  in 
the  question,  must  be  taken  in  a  different  sense  from  the 
other ;  both  words  implying  a  greater  extent  of  knowledge 
than  either  alone.  General  location  is  implied  in  the 
question  by  the  word,  existence;  and  the  word,  location, 
used  with  it,  must  signify  more  than  mere  existence,  more 


513  Note  to  Dorsey  v.  Phillips,  Colby  Const,  Co. 

than  general  location,  in  reference  to  the  track.  It  must 
mean  exact  location,  or  distance  from  the  track.  We  can 
see  no  other  distinctive  meaning  to  be  given  to  it  as  it  is 
used. 

This  was,  presumably,  the  construction  of  the  jury,  who 
could  hardly  have  found  that  the  respondent  had  not  the 
general  knowledge  to  which  he  himself  frankly  testified. 
In  this  view,  each  answer  is  almost  equivalent  to  the  other. 

We  did  not  understand  it  to  be  claimed,  upon  the  argu- 
ment, that  the  questions  considered  bore  a  different  con- 
struction. They  gave  us,  however,  the  greatest  doubt  we 
had  of  our  duty  to  affirm  the  judgment. 

We  are  glad  to  acknowledge  our  obligation  to  counsel  on 
both  sides  for  thorough  preparation  and  intelligent  argu- 
ment of  this  appeal,  leaving  little  labor  of  investigation 
for  us. 

By  the  Court. — The  judgment  of  the  court  below  ia 
affirmed. 

NOTE. 

(Each  case  in  this  note  after  which  is  placed  the  figure 
(1)  relates  to  the  subject  discussed  in  the  foregoing  opin- 
ion numbered  I;  those  numbered  (2)  relate  to  the  subject 
in  the  opinion  numbered  II;  etc.) 

Dorsey  v.  The  Phillips  &  Colby  Construction  Company, 
supra,  has  been  cited  with  approval  in  the  Wisconsin  Su- 
preme Court,  as  follows:  Bessex  v.  C.  &  !N".  W.  By.,1  45 
Wis.  482 ;  Kidd  v.  Fleek,1  47  Wis.  445 ;  Zielke  v.  Mor- 
gan,3 50  Wis.  567;  Ballou  v.  C.,  M.  &  St.  P.  Ry.,3  54 
Wis.  270,  5  Am.  &  Eng.  Ry.  Gas.  504  and  note;  Hoth  v. 
Peters,1  55  Wis.  410;  Hulehan  v.  Green  Bay,  etc.,  Ry.1 
58  Wis.  322 ;  Peschel  v.  C.,  M.  &  St.  P.  Ry.,1  62  Wis. 
346;  Hulehan  v.  Green  Bay,  etc.,  Ry.,1'  2  68  Wis.  526; 
Toner  v.  C.,  M.  &  St.  P.  Ry.,1  69  Wis.  195 ;  Nadau  v. 
White  River  Lumber  Co.,1  76  Wis.  127,  132;  Goltz  v. 
Mil.,  etc.,  Ry.,1  76  Wis.  144;  McClarney  v.  C.,  M.  &  St. 
33 


Opinions  of  Chief  Justice  Ryan.  514 

P.  Ey.,1  80  Wis.  280;  Kelleher  v.  M.  &  K  Ey.,1  80  Wis. 
588;  Haley  v.  Jump  Kiver  Lumber  Co.,1  81  Wis.  421, 
426;  Peffer  v.  Cutler,1  83  Wis.  285;  Coif  v.  C.,  M.  &  St. 
P.  Ey.,1-  3  87  Wis.  275 ;  Luebke  v.  Berlin  Machine  Works,1 
88  Wis.  448 ;  Peterson  v.  Sherry  Lumber  Co.,1  90  Wis. 
93 ;  Kennedy  v.  L.  S.,  etc.,  Co.,1  93  Wis.  39 ;  Simonds  v. 
City  of  Baraboo,1  93  Wis.  43 ;  Curtis  v.  C.  &  K  W.  Ey.,1 
95  Wis.  468 ;  Hennesey  v.  C.  &  K  W.  Ey.,1  99  Wis.  121 ; 
Whitty  v.  City  of  Oshkosh,1  106  Wis.  91 ;  Eenne  v.  IT.  S. 
Leather  Co.,1  107  Wis.  312,  317,  318,  319 ;  Boyce  v.  Wil- 
bur Lumber  Co.,1  119  Wis.  647;  Hocking  v.  Windsor 
Spring  Co.,1  125  Wis.  579. 

It  has  been  cited  with  approval  outside  of  the  Wisconsin 
Supreme  Court,  as  follows :  L.  &  !N".  Ey.  v.  Hall,1  87  Ala. 
720,  4  L.  E.  A.  714,  13  Am.  St.  Eep.  88 ;  Birmingham 
E.  &  E.  Co.  v.  Allen,1  99  Ala.  370,  20  L.  E.  A.  460 ;  Ma- 
gee  v.  N.  P.  C.  Ey.,1'  2  78  Cal.  436,  12  Am.  St.  Eep.  73 ; 
Giraudi  v.  E.  I.  Co.,1  107  Cal.  126,  28  L.  E.  A.  598 ;  Cen- 
tral Ey  v.  DeBray,1  71  Ga.  424;  McKee  v.  C.,  E.  I.  &  P. 
Ey.,1  83  la.  634,  13  L.  E,  A.  284;  St.  L.,  Eort  S.  &  W. 
Ey.  v.  Irwin,1  37  Kan.  710,  1  Am.  St.  Eep.  270 ;  Eobel 
v.  C.,  M.  &  St.  P.  Ey.,1  35  Minn.  86,  88 ;  Flynn  v.  K.  C., 
etc.,  Ey.,1  78  Mo.  211;  Blanton  v.  Dold,1  109  Mo.  76; 
Thomas  v.  M.  P.  Ey.,1  109  Mo.  211 ;  Cunningham  v.  U. 
P.  Ey.,1  4  Utah,  215 ;  K  &  W.  Ey.  v.  Ward,1  90  Va. 
691,  24  L.  E.  A.  719. 

It  has  been  cited  in  notes  to  the  following  cases  reported 
in  Am.  Dec.,  and  Am.  &  Eng.  Ey.  Cas.,  containing  valua- 
ble collections  of  authorities : 

American  Decisions:  Buzzell  v.  Laconia  Mfg.  Co.  (48 
Me.  113),  77  Am.  Dec.  220;  Achtenhagen  v.  City  of  Wa- 
tertown  (18  Wis.  331),  86  Am.  Dec.  772. 

American  &  English  Railway  Cases:  Walker  et  al.  v. 
B.  &  M.  Ey.  (128  Mass.  8),  1  Am.  &  Eng.  Ey.  Cas.  144; 
Wilson  v.  Denver,  etc.,  Ey.  (7  Colo.  101),  15  Am.  &  Eng. 
Ey.  Cas.  196;  L.  E".  A.  &  C.  Ey.  v.  Wright  (115  Ind. 
378),  33  Am.  &  Eng.  Ey.  Cas.  383;  Gardner  v.  Mich. 
Cent.  Ey.  (150  U.  S.  349),  59  Am.  &  Eng.  Ey.  Cas.  252. 


515  Wight  v.  Rindskopf. 


Wight  vs.  Rindskopf. 

August  Term,  1877. 
(43  Wis.  344.) 

This  action  was  brought  by  plaintiff,  Wight,  an  attorney 
at  law  of  Milwaukee,  to  recover. of  defendant  the  sum  of 
$3,000  for  professional  services.  It  was  claimed  by  plaint- 
iff that  $1,000  had  been  paid  upon  the  contract,  and  upon 
the  part  of  the  defendant  it  was  asserted  that  the  $1,000 
which  had  been  paid  was  in  full  for  the  services.  Neither 
the  complaint  nor  the  answer  stated  the  nature  of  the  serv- 
ices. There  was  a  verdict  and  judgment  for  the  plaintiff 
for  the  amount  claimed.  It  was  upon  the  final  appeal 
from  such  judgment  that  the  opinion,  which  is  hereinafter 
set  out,  was  rendered. 

It  appeared  from  the  evidence  that  the  contract  sued 
upon  was,  in  substance,  one  by  which  the  plaintiff  was  to 
procure  immunity  or  the  lowest  punishment  for  defendant 
in  certain  criminal  proceedings  pending  against  him  in 
the  Federal  Court  in  Milwaukee  for  violation  of  the  In- 
ternal Revenue  Laws,  in  consideration  of  defendant  giving 
certain  testimony  in  behalf  of  the  State  to  aid  in  other 
prosecutions.  The  defendant's  evidence  for  the  United 
States  on  indictments  against  other  persons  was  the  condi- 
tion of  the  immunity,  which  plaintiff  agreed  to  procure  for 
defendant  and  certain  other  persons.  The  agreement  for 
clemency  was  made  between  the  plaintiff,  Wight,  acting  as 
attorney  for  defendant,  Rindskopf,  and  others,  and  the  rep- 
resentatives of  the  Government  in  the  prosecutions,  who 
were  former  Chief  Justice  Dixon  and  J.  C.  McKenney. 


Opinions  of  Chief  Justice  Ryan.  516 

When  the  case  reached  the  Supreme  Court  of  Wiscon- 
sin, that  court  on  its  own  motion,  held  that  the  contract 
sued  upon  was  contrary  to  public  policy  and  void.  There- 
after a  motion  for  rehearing  was  made,  and  Mr.  Dixon 
and  Mr.  McKenney  also  filed  a  writing  with  the  court  set- 
ting forth,  among  other  things,  that  the  court  had  over- 
looked the  provisions  of  section  3229  of  the  Eevised  Sta- 
tutes of  the  United  States,  which  specifically  authorized  the 
agreement  in  question.  That  section  of  the  statute  is  as 
follows : 

"The  commissioner  of  internal  revenue,  with  the  advice 
and  consent  of  the  secretary  of  the  treasury,  may  comprom- 
ise any  civil  or  criminal  case  arising  under  the  internal 
revenue  laws,  instead  of  commencing  suit  thereon;  and, 
with  the  advice  and  consent  of  the  said  secretary  and  the 
recommendation  of  the  attorney  general,  he  may  compro- 
mise any  such  case  after  a  suit  has  been  commenced  there- 
on." 

The  opinion  upon  the  motion  for  rehearing,  which  is 
also  herein  set  out,  while  it  admits  that  the  statute  in  ques- 
tion must  modify  to  some  extent  the  reasoning  in  the  first 
opinion,  denies  that  it  can  affect  the  conclusions  there  ar- 
rived at. 

The  following  are  the  propositions  of  law  decided : 

Courts  will  always  refuse  to  enforce  contracts  which 
are  contrary  to  public  morality  or  policy,  whenever 
and  however,  in  actions  upon  them,  that  fact  may  be 
made  to  appear. 

The  admission  of  an  accomplice  as  a  witness  for  the 
government  upon  implied  promise  of  pardon,  in  any 
case,  is  not  at  the  pleasure  of  the  public  prosecutor, 
but  rests  in  the  sound  judicial  discretion  of  the  court. 


517  Wight  v.  Rindskopf. 

If  an  accomplice  in  one  crime  be  also  indicted  for  an- 
other, and  the  fact  be  within  the  knowledge  of  the 
court,  he  will  not,  in  general,  be  admitted  as  a  wit- 
ness ;  but  if  admitted,  though  he  testify  in  good  faith 
against  his  accomplices  upon  one  indictment,  he  will 
be  put  upon  his  trial  on  the  other  and  punished  upon 
conviction. 

An  agreement  of  the  public  prosecutor,  unsanctioned  by 
the  court  (if  such  sanction  could  be  given  in  such  a 
case),  for  immunity  or  clemency  to  several  defend- 
ants, in  several  indictments,  upon  one  of  them  be- 
coming a  witness  for  the  prosecution  upon  still  other 
indictments,  would  be  a  fraud  upon  the  court,  and  an 
obstruction  of  public  justice. 

A  witness,  as  such,  cannot  have  an  attorney ;  and  though 
an  accomplice  may  act  by  advice  of  his  attorney  on  the 
question  whether  he  will  become  a  witness  for  the 
prosecution,  when  he  once  becomes  such  a  witness,  the 
relation  of  the  attorney  and  client  ceases  quoad  hoc. 

The  federal  statute  which  authorizes  the  commissioner 
of  internal  revenue,  with  the  consent  of  the  secre- 
tary of  the  treasury,  to  compromise  any  civil  or 
criminal  case  under  the  internal  revenue  laws,  instead 
of  commencing  suit  thereon,  and,  with  like  consent, 
and  on  the  recommendation  of  the  attorney  general, 
to  compromise  any  such  case  after  suit  commenced 
thereon  (R  S.  of  U.  S.,  Sec.  3229),  being,  in  the 
judgment  of  this  court,  essentially  immoral,  so  far 
as  it  authorizes  a  compounding  of  crimes,  any  col- 
lateral contract,  looking  towards,  in  aid  of,  or  subor- 
dinate to,  such  an  agreement  to  compound  a  crime, 
under  that  statute,  will  not  be  enforced  in  the  courts 
of  this  state. 


Opinions  o/  Chief  Justice  Ryan.  518 

While  several  indictments  were  pending  in  a  federal 
court  against  defendant  and  six  other  persons  for 
violation  of  the  revenue  laws,  plaintiff  told  defendant 
that  his  relations  with  the  prosecuting  attorneys  were 
such  that  he  thought  he  could  render  these  parties  es- 
sential service.  Thereupon  it  was  agreed  between  de- 
fendant and  plaintiff  that  the  former  should  give  evi- 
dence for  the  United  States,  under  the  counsel  and 
direction  of  the  latter,  against  persons,  other  than 
those  included  in  the  agreement,  against  whom  still 
other  indictments  for  violations  of  the  revenue  laws 
were  pending  in  the  same  court ;  and  plaintiff  under- 
took that  defendant  and  the  other  six  persons  above 
mentioned  should  be  permitted  severally  to  plead 
guilty  to  those  counts  only,  in  the  several  indictments 
against  them,  involving  the  least  punishment,  and  re- 
ceive upon  those  the  lowest  punishment  of  the  law; 
and  for  this  service,  if  successful,  defendant  was  to 
pay  plaintiff  a  large  sum  for  each  person  mentioned. 
The  agreement  required  no  disclosure,  evidence  or 
other  aid  to  the  government  from  any  other  person 
than  defendant,  and  did  not  require  him  to  make  full 
disclosure  to  the  prosecuting  attorneys,  or  to  put  him- 
self in  their  hands  as  their  witness.  Held,  that  the 
services  on  plaintiff's  part  thus  stipulated  for  were  not 
within  the  legitimate  scope  of  a  professional  retainer 
of  an  attorney-at-law,  and  a  contract  therefor  is  void 
as  against  public  morality  and  policy. 

The  complaint  in  this  action  being  general  for  pro- 
fessional service,  and  it  not  appearing  that  plaintiff 
may  not  be  able  to  give  evidence  under  it  of  legitimate 
professional  service,  the  cause,  on  reversal  of  a  judg- 
ment in  his  favor  based  upon  evidence  of  such  agree- 
ment, is  sent  back  for  a  new  trial. 


619  Wight  v.  Rindskopf. 

Ryan,  Chief  Justice.  The  learned  counsel  for  the  re- 
spondent contended  that  the  question  of  the  invalidity  of 
the  contract,  as  against  public  policy,  relied  on  by  the  ap- 
pellant, is  not  in  the  case,  because  the  answer  does  not 
raise  it  And  he  cited  some  cases  here  and  elsewhere,  to 
sustain  the  position.  But  we  do  not  think  that  they  do 
so.  They  recognize  a  general  doctrine,  that  when  a  con- 
tract, valid  on  its  face,  is  impeached  for  fraud,  the  ex- 
trinsic facts  going  to  the  consideration  only,  must  be  spe- 
cially pleaded.  They  do  not  hold,  we  know  of  no  case 
which  does,  that  when  a  contract  is  in  terms  contra  bonos 
mores,  it  is  necessary  for  the  defendant  to  plead  the  ob- 
jection; or  that  a  court  will  proceed  to  judgment  upon  it, 
both  parties  even  assenting.  If  the  objection  be  not  made 
by  the  party  charged,  it  is  the  duty  of  the  court  to  make  it 
on  its  own  behalf.  Courts  owe  it  to  public  justice  and 
to  their  own  integrity,  to  refuse  to  become  parties  to  con- 
tracts essentially  violating  morality  or  public  policy,  by 
entertaining  actions  upon  them.  It  is  judicial  duty  always 
to  turn  a  suitor  upon  such  a  contract  out  of  court,  when- 
ever and  however  the  character  of  the  contract  is  made  to 
appear. 

In  the  present  case,  the  nature  of  the  contract  does  not 
appear  either  in  the  complaint  or  in  the  answer.  The 
pleadings  of  both  parties  appear  to  acquiesce  in  its  valid- 
ity. But  if  the  contract,  as  proved,  be  essentially  against 
public  policy,  it  was  the  duty  of  the  court  below  promptly 
to  exclude  it  and  all  evidence  under  it,  from  the  consider- 
ation of  the  jury.  The  acquiescence  of  the  defendant 
could  not  purge  it,  or  afford  excuse  to  the  court  to  enforce 
it.  And  the  question  here  is,  the  nature  of  the  contract 
itself. 

It  appears  to  have  been  early  held  by  a  great  authority, 
than  an  accomplice  with  promise  of  pardon  for  his  evi- 


Opinions  of  Chief  Justice  Ryan.  520 

dence,  is  not  a  competent  witness  against  his  codefend- 
ents  in  an  indictment.  Says  Sir  Matthew  Hale :  "If  a  re- 
ward be  promised  to  a  person  for  giving  his  evidence  be- 
fore he  gives  it,  this,  if  proved,  disables  his  testimony. 
And  so  for  my  own  part  I  have  always  thought,  that  if  a 
person  have  a  promise  of  pardon  if  he  gives  evidence 
against  one  of  his  own  confederates,  this  disables  his  testi- 
mony if  it  be  proved  upon  him."  2  P.  C.  280.  But  a 
contrary  practice  has  long  prevailed,  by  unanimous  consent 
of  all  courts,  English  and  American.  "The  admission  of 
accomplices,  as  witnesses  for  the  government,  is  justified 
by  the  necessity  of  the  case,  it  being  often  impossible  to 
bring  the  principal  offenders  to  justice  without  them." 
1  Greenleaf's  Ev.  sec.  379.  But  this  use  of  an  accomp- 
lice, upon  implied  promise  of  pardon,  is  not  at  the  pleasure 
of  the  public  prosecutor,  but  rests  in  the  sound  judicial 
discretion  of  the  court.  A  justice  of  the  peace,  before 
whom  prisoners  are  brought  for  examination,  cannot  exer- 
cise such  a  discretion,  to  bind  the  court  in  which  the  pris- 
oners are  indicted  and  tried ;  and  the  judges  of  the  court 
itself  cannot  exercise  it,  to  bind  the  pardoning  power; 
though  in  the  latter  case,  if  the  accomplice  make  full  dis- 
closure in  good  faith  upon  the  trial,  the  implied  promise 
of  pardon  is  respected.  And  it  is  not  matter  of  course  for 
the  court  to  admit  the  accomplice  as  a  witness;  applica- 
tion for  the  purpose  must  always  be  made  to  the  court, 
which  admits  or  refuses  to  admit  him,  in  view  of  the  par- 
ticular circumstances  of  the  case.  Rex  v.  Rudd,  1  Leach, 
C.  C.  115 ;  1  Cowper,  332 ;  1  Waterman's  Archbold,  376 ; 
3  Russell  on  Crimes,  596;  1  Edwards'  Phillips'  Ev.  108; 
Sharswood's  Roscoe's  Grim.  Ev.  127;  People  v.  Whip- 
pie,  9  Cow.  707.  And  if  the  accomplice,  being  admitted 
as  a  witness,  fail  to  testify  to  the  whole  truth  in  good  faith, 


Wight  v.  Rindskopf. 

the  implied  promise  of  pardon  is  revoked,  and  the  accomp- 
lice tried  and  punished  for  his  own  crime.  Rex  v .  Rudd, 
supra;  Moore's  Case,  2  Lewin,  37 ;  Rex.  v.  Brunton,  Rus. 
&  Ry.  454.  If  an  accomplice  in  one  crime  be  also  indicted 
for  another,  and  the  fact  be  within  the  knowledge  of  the 
court,  the  accomplice  will  not,  in  general,  be  admitted  as 
a  witness.  Anon.,  2  Car.  &  P.  411.  The  reason  of  this 
rule  is  not  given.  It  may  be  because  the  accomplice  might 
be  misled  by  expectation  of  general  pardon,  or  because  one 
indicted  for  several  crimes  ought  not  to  be  admitted  as  a 
witness  to  any  of  them,  or  perhaps  for  both  reasons.  But 
if  he  be  so  admitted,  though  he  testify  in  good  faith  against 
his  accomplice  upon  one  indictment,  he  will  nevertheless 
be  put  upon  his  trial  on  the  other,  and  punishment  upon 
conviction.  Rex  v.  Lee,  Rus.  &  Ry.  361;  Rex  v.  Brun- 
ton, id.  454. 

So  it  is  seen  that  courts  jealously  reserve  to  themselves, 
and  cautiously  exercise,  the  discretion  to  admit  accom- 
plices as  witnesses,  upon  implied  promise  of  pardon;  and 
that  a  public  prosecutor  has  no  authority  to  make  any  such 
agreement  with  a  defendant  in  an  indictment.  It  is  for 
the  court  alone  to  countenance  the  escape  of  an  accomplice 
from  punishment,  for  giving  evidence  against  those  in- 
dicted with  him.  In  a  proper  case,  it  is  doubtless  the 
duty  of  a  public  prosecutor  to  move  for  leave  to  use  the  ac- 
complice as  a  witness.  But  there  his  discretion  stops. 
And  though  courts  must  necessarily  trust  largely,  in  such 
cases,  to  the  view  of  the  public  prosecutor,  yet  they  do  not 
lightly  give  leave;  and  are  always  presumed  to  exercise 
their  own  judgment  in  view  of  all  the  circumstances.  A 
public  prosecutor  may  propose  to  an  accomplice  to  become 
a  witness  for  the  prosecution ;  but  an  agreement  to  use  him 
,as  a  witness,  upon  any  condition,  without  the  sanction  of 


Opinions  of  Chief  Justice  Ryan.  522 

the  court,  is  a  usurpation  of  authority,  an  abuse  of  official 
character  and  a  fraud  upon  the  court. 

In  this  state  of  the  law,  we  are  not  prepared  to  say  that 
the  attorney  or  counsel  of  one  indicted  with  others,  might 
not  render  proper  professional  service  for  his  client,  in 
negotiating  with  the  prosecuting  officer  for  his  admission 
as  a  witness  against  his  accomplices,  under  an  implied 
promise  of  pardon.  We  are,  however,  far  from  being 
clear,  that  such  an  interference  with  the  duties  of  the  pub- 
lic prosecutor  would  be  within  the  legitimate  scope  of  pro- 
fessional retainer. 

But  such  was  not  the  nature  of  the  respondent's  retainer 
here.  There  appear  to  have  been  many  indictments  pend- 
ing in  the  federal  court,  for  violations  of  the  federal  rev- 
enue law.  Amongst  these,  there  appear  to  have  been  in- 
dictments severally  found  and  pending,  against  the  appel- 
lant, his  four  brothers,  his  brother-in-law,  and  a  servant 
of  some  of  them.  The  respondent  told  the  appellant  that 
his  relations  with  the  prosecuting  attorneys  were  such,  that 
he  thought  he  could  render  these  parties  essential  service. 
It  does  not  appear  whether  the  relations  .thus  suggested 
were  personal  or  professional ;  and  it  is  immaterial.  No  re- 
lation of  any  public  officer,  charged  with  any  function  in 
the  administration  of  justice,  can  be  tolerated  in  any  influ- 
ence upon  its  course.  Corruption  is  a  hard  word,  not  al- 
ways accurately  understood;  covering  a  multitude  of  of- 
ficial delinquencies,  great  and  little.  But  it  is  strictly  ac- 
curate to  apply  it  to  any  color  of  influence,  of  mere  rela- 
tion of  any  kind,  on  the  administration  of  justice. 

The  appellant  appears  not  to  have  trusted  to  the  re- 
spondent's suggestion  of  his  relations  with  the  prosecuting 
officers,  but  to  have  verified  them  himself.  Thereupon  it 
was  agreed  between  the  appellant  and  the  respondent,  that 


523  Wight  v.  RindskopJ. 

the  former  should  give  evidence  for  the  United  States, 
under  the  counsel  and  direction  of  the  latter,  presumably 
against  parties  indicted  under  the  revenue  law,  other  than 
those  included  in  the  agreement ;  that  the  respondent  there- 
upon understood  that  the  appellant  and  the  other  parties 
mentioned,  should  be  permitted  severally  to  plead  guilty  to 
those  counts  only  in  the  several  indictments  against  them, 
involving  the  least  punishment,  and  receive  upon  those  the 
lowest  punishment  of  the  law ;  and  that  for  this  service,  if 
successful,  the  appellant  should  pay  to  the  respondent  a 
large  sum  for  each  person  mentioned,  or  if  unsuccessful, 
nothing.  This  was  the  whole  agreement.  It  provided 
for  no  disclosure,  no  evidence,  no  aid  in  any  shape  to  the 
United  States,  of  any  of  the  parties  included  in  the  agree- 
ment, other  than  the  appellant.  The  appellant's  evidence 
for  the  United  States  on  indictments  against  other  per- 
sons, was  the  only  condition  of  the  clemency  which  the  re- 
spondent agreed  to  secure  for  the  seven  parties  named. 

It  is  important  to  notice  that  the  agreement  almost 
necessarily  presumes  each  of  the  parties  for  whose  benefit 
it  was  made,  to  be  not  only  liable  to  conviction  on  the  in- 
dictment against  him,  but  likely  to  receive  a  higher  degree 
of  punishment  than  that  limited  by  the  agreement. 

It  is  also  to  be  noticed  that,  while  one  only  of  the  per- 
sons for  whom  the  agreement  stipulates  to  secure  clemency, 
was  to  be  a  witness  for  the  United  States,  even  he  was  not 
bound  to  make  full  disclosure  to  the  prosecuting  attorneys, 
or  to  put  himself  in  their  hands,  as  their  witness ;  but  was 
only  to  testify  as  he  might  be  advised  and  directed  by  his 
own  attorney.  We  cannot  believe  that  any  court  ever  ac- 
cepted, ever  could  accept,  an  accomplice  as  a  witness,  upon 
an  implied  promise  of  pardon,  on  such  terms.  Indeed  no 
court  could  decently  accept  any  witness,  in  any  cause,  to 


Opinions  of  Chief  Justice  Ryan.  524 

testify,  not  as  the  court  should  direct,  but  as  he  should  be 
advised  and  directed  by  his  own  attorney.  A  witness,  as 
a  witness,  cannot  have  an  attorney.  It  is  the  duty  of  the 
court  in  which  he  testifies  to  advise  him  of  his  rights  as 
a  witness,  to  protect  him  against  improper  inquiries,  and 
to  enforce  his  answer  to  proper  inquiries.  An  accomplice 
may  act  by  the  advice  and  direction  of  his  attorney,  in  his 
defense  upon  the  indictment  against  him;  he  may  act  by 
advice  and  direction  of  his  attorney  on  the  question  whether 
he  will  become  a  witness;  but  when  he  once  becomes  a 
witness  for  the  prosecution,  the  relation  of  attorney  and 
client  ceases  quoad  hoc.  No  professional  advice  can  limit 
his  testimony  or  prompt  it  or  guide  it.  ~No  advice  bearing 
on  his  testimony  is  proper  to  be  given,  or  within  the  scope 
of  professional  duty  to  give. 

The  respondent  testified  that  he  fully  and  effectually 
performed  the  agreement  on  his  part,  in  all  its  details  and 
as  to  all  of  the  parties. 

Had  all  these  parties  been  indicted  together,  no  case  in 
the  books,  no  principle  in  the  law,  would  sanction  any  ad- 
vantage to  -the  accomplice  becoming  a  Witness  for  the 
prosecution,  except  the  implied  promise  of  pardon  to  him- 
self;  would  sanction  any  immunity  or  clemency,  in  con- 
sideration of  his  giving  evidence,  to  any  other  persons  in- 
dicted with  him.  Any  agreement  of  a  public  prosecutor 
with  an  accomplice  becoming  a  witness,  for  any  advantage 
to  the  accomplice  beyond  his  immunity  upon  the  indict- 
ment upon  which  he  testifies,  or  for  immunity  or  clemency 
to  other  persons  indicted  with  him,  on  the  same  or  any 
other  indictment,  would  not  only  be  beyond  the  official  au- 
thority of  a  public  prosecutor,  but  would  be  an  obstruction 
of  the  administration  of  public  justice  which  no  court 
-could  sanction  or  countenance.  When  indictments  are  sev- 


525  Wight  v.  Rindskopf. 

eral,  for  several  offenses,  we  know  of  no  practice,  of  no 
case  in  the  books,  to  sanction  or  countenance  any  sug- 
gestion of  the  public  prosecutor  for  immunity  or  clemency 
to  the  defendant  on  one  indictment,  on  condition  of  his 
giving  evidence  for  the  prosecution  on  others ;  far  less  for 
immunity  or  clemency  to  several  defendants,  in  several 
indictments,  upon  one  of  them  becoming  a  witness  for  the 
prosecution  upon  still  other  indictments.  We  are  not  pre- 
pared absolutely  to  say  that  there  might  not  be  extraordi- 
nary circumstances  in  which  judicial  sanction  might  be 
given  to  an  understanding  with  the  defendant  in  several 
indictments,  becoming  a  witness  for  the  prosecution  on 
one,  with  promise  of  pardon  en  all ;  in  order  to  secure  con- 
viction for  great  crime,  by  suffering  less  crime  to  go  un- 
punished. We  are  strongly  inclined  to  think,  however, 
that  any  such  agreement  should  be  regarded  as  working 
corruption  in  the  administration  of  public  justice,  beyond 
justification  by  any  exigency.  But  if  any  sanction  could 
be  given  to  such  an  understanding,  it  could  be  given  only 
by  the  court  in  which  the  indictments  are  pending,  upon 
fullest  and  most  explicit  knowledge  of  the  understanding 
and  of  the  circumstances  leading  to  it.  Any  such  agree- 
ment of  a  public  prosecutor  with  a  person  under  indict- 
ment, unsanctioned  by  the  court,  would  be  a  fraud  upon 
the  court  and  an  obstruction  of  public  justice.  A  public 
prosecutor  making  it  would  be  unworthy  of  his  office  and 
of  his  profession. 

A  public  prosecutor  is  a  quasi  judicial  officer,  retained 
by  the  public  for  the  prosecution  of  persons  accused  of 
crime,  in  the  exercise  of  a  sound  discretion  to  distinguish 
between  the  guilty  and  the  innocent,  between  the  certainly 
and  the  doubtfully  guilty;  never  voluntarily  to  acquiesce 
in  an  acquittal  upon  certain  presumption  of  guilt,  or  in 


Opinions  of  Chief  Justice  Ryan.  526 

conviction  upon  doubtful  presumption  of  guilt.  So,  in 
suggesting  to  the  court  the  use  of  an  accomplice  as  a  wit- 
ness for  the  prosecution,  he  acts  upon  his  own  view  of  the 
necessity  and  of  the  comparative  guilt  of  the  persons  in- 
dicted; and  the  court  will  generally  pay  great  respect  to 
his  opinion.  He  is  trusted  with  broad  official  discretion, 
generally  subject,  however,  to  judicial  control.  And  if, 
in  the  exercise  of  his  discretion,  a  public  prosecutor  has 
none  to  make  an  agreement  of  the  character  in  question, 
it  is  surely  not  within  the  legitimate  scope  of  private  pro- 
fessional retainer,  to  induce  him,  by  personal  influence  or 
persuasion  or  otherwise,  to  abuse  and  indeed  to  exceed  his 
discretion,  to  violate  his  duty,  and  to  obstruct  the  adminis- 
tration of  public  justice  which  it  is  his  office  to  promote. 

Any  agreement  of  the  character  here  in  question,  un- 
sanctioned  by  the  court  in  which  the  indictments  are  pend- 
ing, between  a  public  prosecutor  and  the  attorney  of  the 
defendant  in  an  indictment,  is  an  assumption  of  judicial 
function,  a  bargain  for  judicial  action  and  judgment; 
hardly,  if  at  all,  distinguishable  in  principle  from  a  direct 
sale  of  justice.  Without  the  sanction  of  the  court,  it  is 
difficult  to  understand  how  such  an  agreement  could  be 
kept.  For  while  the  court  is  not  privy  to  the  bargain,  the 
fulfillment  of  it  largely  depends  upon  the  court.  Such  a 
bargain,  unsanctioned  by  the  court,  could  not  be  kept  by 
any  proper  exercise  of  proper  professional  function,  in  any 
court  not  willing  largely  to  abdicate  its  proper  functions 
in  favor  of  its  officers. 

It  appears  by  the  evidence  below,  that  the  judgments 
of  the  federal  court  on  the  indictments  were  such  as,  in 
fact,  to  fulfill  the  respondent's  agreement.  How  that  came 
about  does  not  appear.  But  because  it  was  in  fact  brought 
about,  the  learned  counsel  for  the  respondent  contended 


527  Wight  v.  Rindskopf. 

that  we  must  assume  that  the  federal  court  was  privy  to 
the  agreement  and  sanctioned  it.-  In  the  absence  of  all 
evidence  on  the  point,  we  are  not  at  liberty  to  come  to  any 
such  conclusion.  We  have  too  high  a  respect  for  the  emi- 
nent judges  of  that  court.  We  cannot  believe  that  they 
would  lend  any  sanction  to  such  an  agreement.  But  even 
if  unhappily  the  record  disclosed  that  they  did,  we  might 
deplore  the  fact,  but  could  not  permit  it  to  influence  us. 
Such  a  sanction  in  another  jurisdiction  could  not  change 
the  rule  of  public  morality  or  public  policy  in  this  juris- 
diction. ~No  judicial  sanction  elsewhere  could  control  the 
rule  here;  or  justify  courts  here  in  upholding  contracts 
against  the  public  morality  or  public  policy  of  this  state. 
In  such  a  case,  the  validity  of  the  contract  is  determined 
by  the  lex  fori.  Story's  Conflict,  Sec.  244. 

Agreements  tending  to  obstruct  the  administration  of 
justice  in  far  less  degree  have  been  always,  by  all  courts, 
everywhere,  held  void  in  law.  We  do  not,  however,  hold 
this  agreement  void  upon  the  special  authority  of  any  case 
or  class  of  cases,  but  upon  principles  running  through  all 
the  cases  and  of  higher  obligation  than  any.  We  might 
cite  many;  but  we  could  not  bend  down  this  court  to  the 
sanction  of  such  an  agreement,  if  there  were  not  a  prece- 
dent in  the  books  to  sustain  us. 

If  a  professional  retainer  so  to  influence  a  public  prose- 
cutor could  be  sanctioned,  we  see  no  reason  why  a  retainer 
might  not  be  upheld  so  to  influence  an  attorney  or  counsel 
in  the  direction  of  his  private  client's  interest;  nay,  so  to 
influence  a  jury  in  the  box  or  a  judge  upon  the  bench.  All 
such  things  are  not  mere  violations  of  professional  ethics ; 
they  are  outside  of  professional  function. 

The  profession  of  the  law  is  not  one  of  indirection,  cir- 
cumvention or  intrigue.  It  is  the  function  of  the  profes- 


Opinions  of  Chief  Justice  Ryan.  528 

sion  to  promote,  not  to  obstruct,  the  administration  of  jus- 
tice. In  litigation,  a  lawyer  becomes  the  alter  ego  of  his 
client;  and  professional  retainer  rests  in  absolute  and  sa- 
cred confidence.  But  the  duty  imposed  by  professional 
retainer  is  direct  and  open.  Professional  function  is  exer- 
cised in  the  sight  of  the  world.  Professional  learning  and 
skill  are  the  only  true  professional  strength.  Forensic 
ability  is  the  only  true  professional  influence  on  the  course 
of  justice.  Private  preparation  goes  to  this,  only  as  sharp- 
ening the  sword  goes  to  battle.  Professional  weapons  are 
wielded  only  in  open  contest.  ~No  weapon  is  professional 
which  strikes  in  the  dark.  The  work  of  the  profession  is 
essentially  open,  because  it  is  essentially  moral.  No  re- 
tainer in  wrong  is  professional.  A  lawyer  may  devote 
himself  professionally  to  the  legitimate  business  of  his 
client;  but  he  cannot  be  retained  in  whatever  may  not  be 
rightfully  and  lawfully  done.  He  may  defend  a  wrong 
done  in  the  past,  but  he  cannot  be  privy  to  the  doing  of  a 
wrong  in  the  present.  The  profession  is  not  sinless,  but  its 
sins  are  all  unprofessional.  When  a  member  of  the  bar 
is  privy  to  the  wrong-doing  of  his  client,  he  is  his  client's 
accomplice,  not  his  lawyer.  In  courts  or  other  casual 
tribunals,  before  the  great  tribunal  of  public  opinion,  a 
lawyer  may  openly,  upon  open  retainer,  advocate  his  cli- 
ent's cause,  however  bad,  and  be  within  the  function  of  his 
profession.  But  a  lawyer  who  otherwise  uses  personal  or 
professional  influence  to  bend  justice  in  favor  of  his  client; 
who  uses  any  influence  for  his  client  upon  the  administra- 
tion of  justice,  except  open  professional  service  and  advo- 
cacy ;  who  seeks  by  device  or  intrigue  advantage  for  his  cli- 
ent in  litigation ;  is  outside  of  professional  duty  and  func- 
tion ;  is  acting  in  his  personal  and  not  in  his  professional 


529  Wight  v.  Rindskopf. 

capacity.  Justice  -will  always  bear  litigation;  litigation 
is,  in  practice,  presumed  to  be  the  safest  test  of  justice. 
And  the  administration  of  justice  is  promoted,  not  ob- 
structed, by  direct,  open,  professional  advocacy.  But  it 
may  well  be  obstructed  by  private  influence.  It  is  there- 
fore the  duty  of  all  courts,  upon  all  proper  occasions,  to 
see  that  the  profession  is  confined  to  professional  service, 
by  professional  means;  and  to  lend  no  sanction  to  unpro- 
fessional service,  or  unprofessional  retainer;  no  sanction 
to  influence  on  the  course  of  justice  per  ambages.  And,  if 
there  were  no  other  objection  to  this  agreement,  we  should 
hold  it  outside  of  the  scope  of  professional  employment, 
outside  of  the  professional  right  of  a  lawyer;  and  service 
under  it,  not  professional — not  calling  for  professional 
compensation. 

We  could  not  falter  in  the  recognition  or  application  of 
the  principles  underlying  this  judgment,  without  violating 
our  duty  and  prevaricating  with  God  and  our  consciences. 
But  we  apply  them  to  the  present  case  with  peculiar  pain. 
"We  impute  no  conscious  mala  fides  to  the  distinguished 
gentleman  who  is  respondent  here.  The  profession  is  too 
comprehensive  and  difficult  for  a  safe  short  cut,  even  to 
precise  appreciation  of  its  duties  and  scope,  even  by  per- 
sons of  the  most  eminent  abilities  and  general  accomplish- 
ments. We  attribute  the  respondent's  misconception  of 
professional  function  to  want  of  professional  training  and 
experience.  And  the  record  tends  to  show  special  excuse 
for  the  respondent  in  the  misconception. 

If  the  complaint  had  set  out  the  agreement  and  gone 
only  upon  it,  we  should  direct  its  dismissal.  It  does  not, 
however,  but  is  general  for  professional  service.  We  there- 
fore cannot  assume  that  the  respondent  may  not  be  able  to 
34 


Opinions  of  Chief  Justice  Ryan.  530 

give  evidence  under  it  of  legitimate  and  meritorious  pro- 
fessional service.  We  shall  therefore  send  the  case  down 
for  retrial. 

By  the  Court. — The  judgment  is  reversed,  and  the  cause 
remanded  to  the  court  below  for  a  new  trial. 

On  motion  for  rehearing,  the  following  opinion  was 
filed: 

Eyan,  Chief  Justice.  It  appears  that  this  appeal  was 
decided  in  ignorance  of  a  federal  statute,  which  has  been 
now  first  called  to  the  attention  of  the  court,  and  which, 
it  is  claimed,  should  govern  this  appeal  in  favor  of  the  re- 
spondent. 

This  statute  authorizes  the  commissioner  of  internal  rev- 
enue, with  the  assent  of  the  secretary  of  the  treasury,  to 
compromise  any  civil  or  criminal  case  under  the  internal 
revenue  law,  before  judicial  proceedings  taken;  and,  with 
like  consent  and  on  the  recommendation  of  the  attorney 
general,  to  compromise  any  such  case,  after  judicial  pro- 
ceedings taken.  TJ.  S.  E.  S.,  sec.  3229. 

To  appreciate  the  character  of  this  provision,  some  ref- 
erence to  a  few  of  the  other  provisions  of  the  internal  rev- 
enue law  is  necessary. 

Sec.  3167  punishes  by  fine  or  imprisonment  or  both, 
dismissal  from  office  and  incapacity  to  hold  office,  specified 
violations  of  duty  by  revenue  officers.  Sec.  3169  punished 
by  fine  and  imprisonment,  specified  violations  of  duty  by 
revenue  officers,  including  extortion,  conspiracy,  fraud, 
bribery,  false  entries  and  returns,  etc.  Sec.  3170  punishes 
by  fine  and  imprisonment,  compounding  violations  of  the 
law,  by  certain  unauthorized  officers.  Sec.  31Y9  punishes 
by  fine  or  imprisonment  or  both,  the  return  to  certain  rev- 


531  Wight  v.  Rindskopf. 

enue  officers  of  false  lists,  accounts  or  statements,  many  of 
which  are  required  to  be  made  under  oath  by  sees.  3307, 
3338,  3358,  3387,  3390,  3414;  such  false  oaths  being  made 
perjury,  punishable  by  fine  and  imprisonment  and  incom- 
petency  to  give  testimony,  by  sec.  5392.  Sec.  3305  pun- 
ishes by  fine  and  imprisonment  and  forfeiture  of  realty 
and  personalty,  the  making  of  false  entries  in  books  of  dis- 
tillers. Sec.  3306  punishes  by  fine  and  imprisonment,  the 
use  of  false  weights  and  measures.  Sec.  3326  punishes 
by  fine  and  imprisonment,  alterations  of  revenue  stamps, 
marks  and  brands.  Sec.  3342  punishes  by  fine  and  im- 
prisonment the  use  of  forged  revenue  stamps.  Sec.  3346 
punishes  by  imprisonment  the  making,  selling  or  using,  of 
counterfeit  revenue  stamps  and  permits,  and  dies  for  mak- 
ing them.  Sec.  3375  declares  the  use  of  forged  or  can- 
celed revenue  stamps  felony,  punishable  by  fine  and  impris- 
onment. Sec.  3423  punishes  by  fine  or  imprisonment  or 
both,  forgery,  larceny  or  embezzlement  of  revenue  stamps. 
Sec.  3429  punishes  by  fine  and  imprisonment,  forgery  of 
revenue  stamps,  dies,  plates,  etc.,  and  effacing  the  cancella- 
tion of  revenue  stamps.  Sec.  3451  punishes  by  imprison- 
ment, forgery  of  bonds,  permits,  entries  or  other  documents 
under  the  law. 

It  is  not  for  us  to  criticise  any  disregard  or  confusion 
of  the  distinction  between  civil  and  criminal  processes,  or 
of  the  essential  distinction  between  misdemeanor  and  fel- 
ony, or  of  the  degrees  of  moral  turpitude,  which  may  be 
found  in  these  provisions.  But  it  is  our  duty  to  notice 
that  the  statute,  upon  which  this  motion  is  chiefly  founded, 
expressly  authorizes  the  compounding  of  misdemeanors  of 
a  purely  public  character,  of  crimes  ranking  as  felony  at 
the  common  law,  and  of  crimes  made  felony  by  the  stat- 
ute itself. 


Opinions  of  Chief  Justice  Ryan.  532 

Pending  this  motion,  besides  the  argument  of  the  respond- 
ent, we  received  a  paper  signed  by  two  distinguished  mem- 
bers of  this  bar,  criticising  the  opinion  delivered  on  the 
appeal.  In  this  paper,  a  regret  seems  to  be  implied  that 
we  had  not  looked  into  the  federal  revenue  law  for  "the 
gladsome  light  of  jurisprudence"  to  guide  us  in  considering 
this  appeal.  We  confess  that  we  never  thought  of  it.  It 
is  suggested  that  we  should  have  searched  it  for  the  chance 
of  finding  some  such  provision  as  that  now  relied  on.  We 
venture  to  suggest  in  return,  that  we  were  educated,  polit- 
ically and  professionally,  in  too  high  a  reverence  for  fed- 
eral authority  in  its  sphere,  to  have  thought  possible  such 
a  provision  in  a  federal  statute. 

It  is  supposed  by  some  that  compounding  an  offense  was 
anciently  an  offense  of  equal  grade  with  the  offense  com- 
pounded. However  that  may  be,  compounding  a  felony 
has  been  so  long  a  crime  as  to  have  come  down  to  us  with 
its  Saxon  name  of  theft-bote;  and  compounding  a  misde- 
meanor of  an  essentially  public  nature  has  almost  as  long 
been  an  indictable  obstruction  of  the  course  of  public  jus- 
tice. 1  Russell  on  Or.,  194r-5.  Compounding  a  public 
offense,  felony  or  misdemeanor,  is  essentially  immoral,  not 
malum  prohibitum,  but  malum  in  se;  proceeding  upon  "a 
wicked  consideration ;"  "to  gild  over  and  conceal  the  truth. 
And  whenever  courts  of  law  see  such  attempts  made  to  con- 
ceal such  wicked  deeds,  they  will  brush  away  the  cobweb 
varnish,  and  show  the  transactions  in  their  true  light ;  that 
is,  an  agreement  to  stifle  a  prosecution."  Collins  v.  Blan- 
tern,  2  Wils.  347 ;  Edgcombe  v.  Rodd,  5  East,  294.  "The 
compounding  of  penalties  is  an  offense  at  common  law,  of 
dangerous  tendency,  highly  derogatory  to  public  example ; 
and  prosecutions  are  no  more  to  be  improperly  suppressed 
by  public  informing  officers,  than  by  common  informers. 


533  Wight  v.  Rindskopf. 

It  is  contra  bonos  mores,  and  of  dangerous 
tendency,  that  any  prosecuting  officer  may  induce  such  set- 
tlement by  using  his  official  influence  and  power,  to 
threaten  with  other  prosecutions,  and  to  offer  to  suppress 
them,  in  order  to  procure  a  settlement  of  those  already 
commenced  and  pending."  Hinesburgh  v.  Sumner,  9  ^rt. 
23.  And  we  should  no  more  have  thought  of  looking  into 
the  legislation  of  congress  for  a  statute  licensing  the  com- 
pounding of  public  crimes,  than  for  a  statute  licensing  the 
crimes  themselves ;  or,  to  speak  more  accurately,  licensing 
any  other  public  crime.  It  might  well  be  suggested,  in 
the  paper  mentioned,  that  such  a  statute  would  shock  ears 
accustomed  to  listen  to  the  morality  of  the  common  law. 

The  respondent  has  been  at  pains  to  cite  federal  deci- 
sions to  the  familiar  proposition,  that  all  offenses  against 
the  United  States  are  statutory,  and  that  federal  courts 
take  no  jurisdiction  of  crimes  at  the  common  law.  He  has, 
however,  cited  no  case,  we  trust  that  the  youngest  of  the 
profession  may  not  live  to  cite  one,  tending  to  absolve  fed- 
eral courts,  in  the  administration  of  criminal  law,  from  the 
rules  of  public  morality  and  decency  taught  by  the  com- 
mon law. 

But  it  is  said  that  it  was  the  policy  of  congress  to  treat 
offenses  under  the  revenue  law,  not  strictly  as  crimes  to  be 
prosecuted  and  punished  always,  but  rather  as  a  system 
of  penalties  and  forfeitures  in  aid  of  the  collection  of  rev- 
enue, satisfied  when  that  end  is  attained.  It  is  humiliat- 
ing to  confess  that  such  appears  to  be  a  fair  construction 
of  the  statute ;  that  federal  revenue  officers  may  exact  from 
iniquity  the  wages  of  impunity;  that  the  federal  treasury 
may  swallow  the  price  of  unpunished  public  guilt,  indulged 
for  a  "wicked  consideration" — fraud,  extortion,  bribery, 
larceny,  forgery,  perjury;  that  the  secretary  of  the  treas- 


Opinions  of  Chief  Justice  Ryan.  534 

ury  must  accept  the  price  of  the  indulgence,  perhaps  recon- 
ciling his  conscience  to  the  duty  by  saying,  as  was  said  of 
old,  non  olet:  the  United  States  of  America,  example  and 
hope  of  the  nations,  playing  theft-bote.  The  provision  for 
compounding  public  offenses  is  essentially  immoral,  *beyond 
all  statutory  power  to  purge  it ;  tainting  the  whole  statute. 
Immorality  is  essentially  contagious.  A  corrupt  part  is 
apt  to  corrupt  the  whole.  An  immoral  particular  in  a  gen- 
eral system  of  procedure  has  a  tendency  to  poison  the  en- 
tire system,  as  some  diseases  do  all  the  functions  of  the 
natural  body.  And  so  it  seems  to  have  proved  with  this 
statute.  What  wonder  that,  when  one  class  of  revenue  of- 
ficers is  authorized  to  compound  crimes  after  they  are  com- 
mitted, another  class  of  them  should  take  it  upon  them  to 
compound  crimes  before  they  are  committed ;  as  indulgence 
for  past  sin  is  said  to  have  insensibly  degenerated  into  in- 
dulgences for  future  sin?  What  wonder  that,  when  one 
set  of  revenue  officers  is  authorized  to  compound  crime  on 
behalf  of  the  public,  another  set  should  assume  to  com- 
pound crime  on  their  own  behalf  ?  The  common  estimate 
of  revenue  officers  is  not  such  as  to  place  them  generally 
above  the  influence  of  bad  example.  It  seems  rash  faith 
to  trust  inferior  revenue  officers  in  such  matters,  when 
their  superiors  are  authorized,  by  the  statute  of  their  be- 
ing, to  receive  a  price  for  the  commission  of  crimes,  in- 
famous in  all  the  world  and  in  all  time;  a  price  for  re- 
storing perjurers  to  competency  as  witnesses;  a  price  for 
the  inferior  officers  themselves  to  purchase  continuance  in 
office  and  capacity  to  hold  other  office,  forfeited  by  crime. 
That  is  the  statute  as  it  is  written. 

It  is  said  that  the  federal  courts  submit  to  this  statute, 
and  suffer  revenue  officers  to  compound  crimes  for  which 
indictments  are  pending,  without  their  consent;  as  it  is 


535  Wight  v.  Rindskopf. 

said,  "in  spite  of  them."  This  may  be  so,  though  we 
should  hope  not,  and  we  are  referred  to  no  case  and  know 
of  none  to  show  it.  It  is  not  for  us  to  consider  whether 
the  federal  judiciary  is  bound  by  such  a  statute,  to  sur- 
render the  exercise  of  judicial  power,  or  to  submit  to  such 
tyranny  of  immorality.  It  may  be  that  paltry  officers  of 
the  revenue  service  may  arrest  the  proceedings  of  the  fed- 
eral courts,  may  loose  the  judicial  hold  upon  extortioners, 
thieves,  forgers  and  perjurers ;  baffling  justice  and  defying 
punishment  in  open  court,  upon  the  ground  that  the  guilty 
have  paid  a  price  for  the  privilege  of  guilt,  ^,  sordid  sub- 
stitute for  benefit  of  clergy;  nay,  possibly,  that  federal 
courts  submit  to  see  a  price  paid,  effectual  to  annul  their 
convictions  and  set  at  large  their  condemned  prisoners,  as- 
soiled  of  all  guilt  and  restored  to  all  rights  by  bribes  to  the 
federal  treasury. 

But  these  considerations  are  for  the  federal  courts  alone. 
Non  nostrum  tantas  componere  Hies.  We  have  considered 
the  statute  solely  for  the  purpose  of  determining  the  moral- 
ity of  contracts  made  under  it.  Such  contracts  may  be 
held  lawful  in  the  federal  jurisdiction,  though  we  hope 
not.  But  in  this  jurisdiction  they  must  be  held  to  ignore 
all  sense  of  the  natural  morality;  to  violate  essential  and 
fundamental  principles  of  jurisprudence,  to  be  against 
public  policy  and  offensive  to  judicial  integrity;  tending 
to  corrupt  public  morals  and  to  promote  obstruction  of 
public  justice. 

We  could  not,  in  judicial  propriety,  sanction  recovery 
here  on  any  such  contract.  We  should  be  conscious  of 
prostituting  the  justice  of  this  court,  as  well  in  upholding 
a  contract  to  compound  crime,  made  under  the  statute  for 
the  benefit  of  the  general  government,  as  in  upholding  a 
contract  to  compound  a  crime  made  in  violation  of  the 


Opinions  of  Chief  Justice  Ryan.  53  J 

statute,  for  the  benefit  of  the  officer  making  it.  The  turpi- 
tude of  the  two  would  be  the  same  in  nature,  though  dif- 
ferent in  degree.  The  same  principle  would  govern  both. 
We  cannot  stoop  to  justify  a  doctrine  universally  recog- 
nized, and  exhausted  in  the  brief  maxim,  ex  turpi  contractu 
non  oritw  actio.  And,  in  reason  and  by  all  the  cases,  the 
principle  applies  not  only  to  the  main  contract  compound- 
ing crime,  but  to  all  collateral  contracts  looking  towards  it, 
in  aid  of  it  or  subordinate  to  it.  We  could  no  more  en- 
force contracts  compounding  or  tending  to  compound  crime 
coming  from  the  federal  jurisdiction,  than  contracts  of 
polygamy  from  the  jurisdiction  of  Utah  or  of  Turkey. 

The  respondent  seems  to  think  that  we  erred  in  applying 
the  lex  fori  to  a  contract  coming  from  another  jurisdiction. 
The  authorities  are  numerous  and  we  think  unanimous  on 
the  point.  The  rule  as  it  is  understood  in  England,  is  hap- 
pily stated  by  .Best,  J.,  in  Forbes  v.  Cochrane,  2  B.  &  C. 
448 :  "The  plaintiff,  therefore,  must  recover  here  upon 
what  is  called  the  comitas  inter  communitates  ;  but  it  is  a 
maxim  that  that  cannot  prevail  in  any  case  where  it  vio- 
lates the  law  of  our  own  country,  the  law  of  nature  or  the 
law  of  God.  The  proceedings  in  our  courts  are  founded 
upon  the  law  of  England,  and  that  law  is  again  founded 
upon  the  law  of  nature  and  the  revealed  law  of  God.  If 
the  right  sought  to  be  enforced  is  inconsistent  with  either 
of  these,  the  English  municipal  courts  cannot  recognize  it. 
I  take  it  that  that  principle  is  acknowledged '  by  the  laws 
of  all  Europe."  The  supreme  court  of  New  Hampshire 
gives  the  rule  in  similar  language,  and  applies  it  to  a  con- 
tract coming  from  a  sister  state,  in  Smith  v.  Godfrey,  28 
N.  H.  379.  And  Parsons,  C.  J.,  in  the  famous  case  of 
Greenwood  v.  Curtis,  6  Mass.  358,  says  of  the  comitas  inter 
communitates:  "The  rule  is  subject  to  two  exceptions.  Ono 


537  Wight  v.  Rindskopf. 

is  when  the  commonwealth  or  its  citizens  may  be  injured 
by  giving  legal  effect  to  the  contract  by  a  judgment  in  our 
courts.  .  .  .  Another  exception  is  when  the  giving  of 
legal  effect  to  the  contract  would  exhibit  to  the  citizens  of 
the  state  an  example  pernicious  and  detestable."  One 
jurisdiction  cannot  impose  rules  of  public  policy  or  moral- 
ity upon  another  jurisdiction  essentially  different  from  its 
own.  If  such  a  contract  as  the  respondent's  is  sanctioned 
by  federal  law,  he  may  be  able  to  find  a  remedy  in  a  federal 
court :  but  not  in  the  courts  of  this  state. 

In  the  former  opinion,  it  was  held  that  the  respondent's 
contract  is  extra-professional.  And  it  is  noticeable  that 
both  the  papers  before  us  appear  to  overlook  one  becoming 
feature  in  the  federal  provision  for  compounding  crime. 
When  a  criminal  prosecution  is  pending  in  court,  the  assent 
of  the  attorney  general  is  required  to  compound  the  offense : 
though  it  is  hard  to  imagine  the  nominal  head  of  the  Amer- 
ican bar  giving  it,  if  at  all,  with  good  grace.  But  other- 
wise the  section  delegates  no  duty  to  the  bar.  It  commits 
the  power  exclusively  to  revenue  officers ;  fitter,  it  seems  to 
be  assumed,  for  such  a  function  than  members  of  a  profes- 
sion educated  in  the  morality  of  the  common  law.  The 
section  imposes  none  of  its  dirty  work  upon  the  bar.  It  au- 
thorizes no  member  of  the  profession  to  negotiate  or  con- 
tract with  criminals  for  compounding  their  crimes.  That 
seems  to  be  taken  as  more  in  the  way  of  revenue  officials. 
And  so  the  statute  leaves  the  power  exclusively  with  the 
commissioner  of  internal  revenue ;  to  be  executed,  it  is  pre- 
sumed, by  that  officer  or  some  of  his  army  of  subordinates, 
supervisors,  collectors  and  the  like.  But  it  spares  the  fed- 
eral district  attorneys  all  part  in  such  negotiations  and  con- 
tracts. If  such  part  be  imposed  upon  them  by  treasury 
•  officials,  it  is  imposed  without  color  of  authority  in  the 


Opinions  of  Chief  Justice  Ryan.  538 

statute.  With  the  single  exception  mentioned,  the  section 
seems  to  have  been  framed  in  our  view  of  the  character  and 
function  of  the  profession  of  the  law.  Surely  it  needs  no 
argument  to  show  that  it  is  unprofessional  to  compound 
crime,  unprofessional  to  advise  in  or  be  privy  to  the  com- 
pounding of  crime.  One  compounding  for  his  crime  can 
have  no  professional  aid.  It  may  be  doubted  whether  the 
service  which  the  respondent  agreed  to  render  was  in  aid 
of  such  compounding  as  the  statute  contemplates.  We 
need  not  inquire  too  curiously  into  that.  Either  way,  with- 
in or  without  the  statute,  we  cannot  hold  the  respondent's 
contract  a  contract  for  professional  service. 

Had  we  been  cited  to  the  statute  or  aware  of  it,  when  we 
passed  upon  this  appeal,  it  could  not  have  affected  our 
judgment,  though  it  would  unquestionably  have  somewhat 
controlled  the  course  of  reasoning  of  the  opinion.  The 
statute  undoubtedly  gives  such  palliation  as  such  a  statute 
can,  to  some  things  criticised  in  the  opinion.  For  that  rea- 
son we  regret  that  our  attention  was  not  then  called  to  it. 
We,  of  course,  desire  all  such  criticisms  understood  as  more 
or  less  qualified,  as  the  statute  bears  more  or  less  upon 
them.  It  would  be  tedious  and  is  unnecessary  to  review 
them  in  detail.  The  two  opinions  will  be  taken  together ; 
and,  as  far  as  it  may,  the  statute  ex  proprio  vigore  will  play 
its  part  of  scapegoat. 

Pending  this  motion,  as  already  intimated,  we  received 
a  printed  paper  from  two  members  of  this  bar,  who  hap- 
pened to  be  employed  in  the  prosecution  of  the  federal  in- 
dictments mentioned  in  the  record.  This  paper  gives  their 
statement  and  view  of  their  part  bearing  on  the  respond- 
ent's contract  and  service,  and  asks  that  it  be  published 
with  the  report  of  this  case.  One  of  these  gentlemen  was 
examined  as  a  witness  in  the  court  below;  and  something; 


539  Wight  v.  Rindskopf. 

like  complaint  is  suggested,  because  we  did  not  refer  to  his 
testimony.  We  rested  our  judgment,  however,  solely  on 
the  respondent's  contract  just  as  he  stated  it ;  referring  but 
slightly  and  incidentally  to  his  other  testimony,  and  not  at 
all,  we  think,  to  the  testimony  of  any  other  witness.  Some 
complaint  it  made  that  the  opinion  does  these  gentlemen 
personal  and  professional  injustice.  We  trust  not.  Surely 
none  was  intended.  A  more  careful  reading  of  the  opin- 
ion, it  is  hoped,  will  satisfy  them  of  the  fact  that  we  ab- 
stained ex  industria  from  any  comment  on  their  action. 
We  endeavored  to  avoid  allusion  to  it,  because  it  was  im- 
material, and  out  of  regard  for  gentlemen  who  could  not 
then  be  heard.  We  cheerfully  give  them  the  hearing  they 
now  ask,  and  direct  their  petition  to  go  with  the  report  of 
this  appeal.  It  is  for  them,  not  for  us,  to  judge  of  its 
necessity,  and  of  the  ground  of  their  action.  The  court 
has  deep  interest  in  the  reputation  of  its  bar.  If  these 
gentlemen  erred  in  connection  with  the  prosecutions  in  the 
federal  court,  a  question  not  before  us,  we  cannot  doubt  that 
they  erred  unconsciously,  perhaps  in  undue  deference  to- 
federal  authority  and  federal  practice  in  such  matters.  If 
we  have  inadvertently  done  them  harm  or  given  them  of- 
fense, we  can  only  deplore  it.  One  of  them  is  distin- 
guished for  ability  in  his  profession,  and  has  done  nothing 
here  to  impair  his  standing  or  to  forfeit  the  regard  which 
the  court  owes  to  members  of  its  bar.  We  should  be  most 
reluctant  to  do  him  disservice.  The  other  has  peculiar 
claim  upon  the  respect  of  this  court,  of  which  he  was  so 
late  and  so  long  the  honored  chief.  His  voluntary  with- 
drawal to  resume  his  place  at  the  bar  was  the  occasion  of 
great  and  just  regret  to  his  associates  and  to  the  profession. 
The  reports  of  the  court  bear  witness  to  his  great  work  in 
it;  to  the  eminent  ability,  high  character,  professional 


Opinions  of  Chief  Justice  Ryan.  540 

learning,  judicial  tone  of  mind,  and  love  of  justice,  which 
he  brought  to  it.  His  absence  is  still  felt  here.  His  office 
in  the  court  is  filled,  not  his  place.  Surely  no  member  of 
this  court  could  willingly  expose  him,  could  fail  to  regret 
to  see  him  exposed,  to  any  censure,  personal  or  professional. 
By  the  Court. — The  motion  is  overruled. 

NOTE. 

Wight  v.  Eindskopf ,  supra,  has  been  cited  with  approval 
in  the  Wisconsin  Supreme  Court,  as  follows:  Fulton  v. 
Day,  63  Wis.  116;  State  v.  Kussell,  83  Wis.  334;  Mil.  M. 
&  B.  Assn.  v.  Mezerowski,  95  Wis.  137,  37  L.  R.  A.  130. 

It  has  been  cited  with  approval  outside  of  the  Wisconsin 
Supreme  Court,  as  follows :  Morrill  v.  Nightingale,  93  Cal. 
458,  27  Am.  St.  Rep.  211 ;  Jones  v.  Danneberg  Co., 
112  Ga.  426,  52  L.  R.  A.  274;  Critchfield  v.  Bermuda 
Asphalt  Co.,  174  111.  4:66,  42  L.  R.  A.  353 ;  Reed  v.  John- 
son, 27  Wash.  55,  57  L.  R.  A.  409;  Wilde  v.  Wilde,  37 
Neb.  896;  Thomas  v.  Brownsville,  etc.,  Ry.,  1  McCr.  397; 
Cook  v.  Sherman,  4  McCr.  25 ;  Bierbauer  v.  Wirth,  10 
Biss.  62;  W.  U.  Tel.  Co.  v.  U.  P.  Ry.,  3  Fed.  10;  W.  U. 
Tel.  Co.  v.  U.  P.  Ry.,  20  Fed.  170. 

It  has  been  cited  with  copious  notes  to  'cases  reported 
in  L.  R.  A.,  as  follows:  People  v.  North  River,  etc.,  Co. 
(121  N.  Y.  582),  2  L.  R.  A.  34;  McClintock  v.  Loisseau 
(31  W.  Va.  865),  2  L.  R.  A.  817;  Austin  v.  Davis  (128 
Ind.  472,  12  L.  R.  A.  122;  Goodrich  v.  Tenney  (144  El. 
422),  19  L.  R.  A.  371.  Also  see  note  to  Smilbie  v.  Smith, 
32  N.  J.  Eq.  56. 


Prideaux  v.  City  of  Mineral  Point ', 


Prideaux  and  Wife  vs.  The  City  of  Mineral  Point. 

January  Term,  1878. 
(43  Wis.  513.) 

This  was  an  action  brought  by  plaintiffs,  husband  and 
wife,  against  the  City  of  Mineral  Point  to  recover  damages 
for  injuries  to  the  wife  alleged  to  have  been  caused  by  a 
defective  street  in  defendant  city. 

The  nature  of  the  defect  in  the  street  and  the  other  facts 
necessary  to  an  understanding  of  the  opinion  sufficiently 
appear  in  the  opinion. 

The  propositions  of  law  decided  are  as  follows: 

In  an  action  for  injuries  from  a  defective  highway, 
proof  in  behalf  of  the  defendant  city  that  its  authori- 
ties, upon  actual  view,  were  satisfied  with  the  condi- 
tion of  the  highway,  is  inadmissible. 

Sec.  5,  ch.  237  of  1873  (the  charter  of  the  defendant 
city)  does  not,  if  it  could,  make  the  judgment  of  the 
common  council  conclusive  of  the  sufficiency  of  the 
street. 

There  being  a  depression  in  one  of  the  traveled  streets 
of  a  city,  the  authorities  raised  one-half  in  width  of 
the  street  over  the  depression,  by  embankment  some 
six  feet  high  in  the  middle  and  gradually  lessening 
towards  each  end;  and  the  side  of  the  embankment, 
next  to  that  half  of  the  street  which  was  left  in  its 
natural  state,  was  precipitous  and  without  railing  or 
barrier.  Held,  that  the  street  was  unsafe,  as  a  mat 
ter  of  law,  even  though  each  half  was  safe  by  itself. 

Proof  in  such  a  case  that  the  defendant  municipality 
has  expended  all  the  means  at  its  disposal  in  repair- 


'Opinions  of  Chief  Justice  Ryan.  542 

ing  its  streets,  will  not  excuse  it,  every  municipality 
being  bound,  at  its  peril,  to  keep  its  highways  in  suf- 
ficient repair,  or  to  take  precautionary  means  to  pro- 
tect the  public  against  danger  of  insufficient  high- 
ways. 

The  injuries  complained  of  having  resulted  from  the 
overturning  of  a  livery  carriage,  in  which  plaintiffs 
were  riding,  the  declarations  of  the  driver  to  the 
owner  of  the  carriage  and  team,  after  his  return  to 
the  stable  without  the  injured  person,  were  not  ad- 
missible in  chief  as  part  of  the  res  gestce,  though  ad- 
missible, upon  proper  foundation,  to  contradict  the 
driver. 

The  driver  of  a  private  conveyance  is  the  agent  of  the 
person  in  such  conveyance,  so  that  his  negligence,  con- 
tributing to  the  injury  complained  of  by  such  person 
&  caused  by  a  defective  highway,  will  defeat  the  ac- 
ion. 

Instructions  in  this  case  which  the  jury  might  natur- 
ally, and  probably  did,  understand  as  meaning  that 
the  driver's  want  of  ordinary  care,  to  defeat  the  ac- 
tion, must  have  been  gross,  held  erroneous. 

The  doctrine  of  Hoyt  v.  Hudson,  41  Wis.  105,  as  to 
proof  of  contributory  negligence,  explained. 

It  was  error  to  instruct  the  jury  that  contributory  negli- 
gence, to  defeat  the  action,  must  be  proven  conclu- 
sively to  their  minds. 

Ryan,  Chief  Justice.  I.  There  is  no  error  in  the  ad- 
mission or  exclusion  of  evidence,  to  disturb  the  judgment. 

Notice  of  the  insufficiency  of  the  highway,  or  reasona- 
ble opportunity  of  knowing  it,  was  necessary  to  charge  the 
.appellant.  Express  notice  to  the  authorities  of  the  city 


543  Prideaux  v.  City  of  Mineral  Point. 

was  plainly  proper.  Harper  v.  Milwaukee,  30  Wis.  365. 
And  the  evidence  offered  that  the  authorities  of  the  city, 
upon  actual  view,  were  satisfied  with  the  condition  of  the 
highway,  was  clearly  inadmissible  to  excuse  the  appellant. 
Sec.  1  of  chap.  5  of  the  charter,  chap.  237  of  1873,  does 
not,  if  it  could,  make  the  judgment  of  the  common  council 
conclusive  of  the  sufficiency  of  the  street. 

The  evidence  offered  that  the  appellant  had  expended 
all  the  means  at  its  disposal  in  repairing  its  streets,  had 
no  tendency  to  excuse  it.  Every  municipality  is  bound, 
at  its  peril,  to  keep  its  highways  in  sufficient  repair,  or  to 
take  precautionary  means  to  protect  the  public  against 
danger  of  insufficient  highways.  Seward  v.  Milford,  21 
Wis.  485 ;  Ward  v.  Jefferson,  24  id.  342 ;  Burns  v.  Elba, 
32  id.  605 ;  Green  v.  Bridge  Creek,  38  id.  449. 

The  res  gestce  of  this  accident  did  not  go  with  the  team 
to  the  livery  stable,  but  remained  in  the  locus  in  quo  with 
the  injured  woman.  And  the  declarations  of  the  driver 
to  the  liveryman,  were  a  subsequent  narrative  of  the  res 
gestce ',  not  admissible  in  chief  as  offered;  though  admis- 
sible, upon  proper  foundation,  to  contradict  the  driver. 
Sorenson  v.  Dundas,  42  Wis.  642. 

II.  The  charge  of  the  learned  judge  who  presided  at 
the  trial  in  the  court  below,  was  severely  criticised  by  the 
learned  counsel  of  the  appellant.  And  it  must  be  con- 
fessed that  some  parts  of  it  are  unaccountably  confused 
and  inaccurate. 

So  far  as  it  relates  to  the  negligence  of  the  appellant, 
it  is  unnecessary  to  review  it.  It  may  be  doubted  whether 
any  inaccuracy  of  the  charge  on  that  point  would  warrant 
the  reversal  of  the  judgment.  For  there  is  no  controversy 
or  doubt  as  to  the  condition  of  the  highway.  It  was  such 
that  the  court  would  have  been  warranted  in  holding  it 


Opinions  of  Chief  Justice  Ryan.  544 

unsafe  as  a  matter  of  law.  There  was  a  depression  in  one 
of  the  traveled  streets  of  the  city.  The  authorities  raised 
one-half  in  width  of  the  street  over  the  depression,  by  em- 
bankment some  six  feet  high  in  the  middle  and  gradually 
lessening  towards  each  end.  The  side  of  the  embankment 
next  the  other  half  of  the  street,  left  on  its  natural  level, 
was  precipitous  and  rough,  without  railing  or  barrier  to 
protect  travelers  from  being  precipitated  over  it.  It  is 
claimed  that  each  half  of  the  street  was  sufficient  for 
travel;  and  that  because  each  half  was  safe  by  itself,  the 
whole  street  was  safe.  This  is  a  great  and  mischievous 
error.  A  traveled  highway  must  be  reasonably  safe  for 
travel  over  its  whole  surface.  Cremer  v.  Portland,  36 
Wis.  92.  A  road  cut  in  two  by  a  precipice  is  almost 
equally  unsafe  in  fact,  is  equally  insufficient  in  law, 
whether  the  precipice  be  across  or  along  the  highway. 
Although  towns  are  not  generally  bound  to  keep  the  full 
width  of  their  highways  fit  for  travel,  but  only  a  sufficient 
width,  yet  a  country  road  passing  along  an  embankment 
of  the  width  of  that  in  this  case,  with  a  side  or  sides  as- 
precipitous  and  as  unprotected,  would  under  all  ordinary 
circumstances  be  held  dangerous.  Houfe  v.  Fulton,  29 
Wis.  296,  S.  C.  34-  id.  608 ;  Jackson  v.  Bellevieu,  30  id. 
250;  Kelley  v.  Fond  du  Lac,  31  id.  179,  S.  C.  36  id.  307;, 
Burns  v.  Elba,  supra;  Hawes  v.  Fox  Lake,  33  Wis. 
438.  A  fortiori,  a  traveled  street  in  an  incorporated  city. 
Wheeler  v.  Westport,  30  Wis.  392.  In  this  case  the  rule 
applies  with  peculiar  force;  for  the  dangerous  character 
of  the  street  did  not  come  by  nature  or  by  accident,  but  by 
the  willful  act  of  the  city  authorities.  Milwaukee  v.  Da- 
vis, 6  Wis.  377 ;  Harper  v.  Milwaukee,  supra. 

But  as  they  bear  upon  the  question  of  contributory 
negligence,  the  inaccuracies  of  the  charge  are  important- 


545  Prideanx  v.  C//y  of  Mineral  Point. 

The  learned  judge  did  not  correctly  state  the  rule  of 
proof  of  contributory  negligence,  in  actions  for  negligence, 
settled  in  Hoyt  v.  Hudson,  41  Wis.  105.  It  does  not  put 
the  onus  probandl,  in  all  cases  upon  the  defendant,  as  the 
learned  judge  appears  to  have  stated.  The  rule  intended 
in  that  case  is,  that  a  plaintiff,  giving  evidence  of  the 
negligence  of  the  defendant  and  the  resulting  injury  to 
himself,  without  showing  any  contributory  negligence,  is 
bound  to  go  no  further ;  he  is  not  required  to  negative  his 
own  negligence.  If,  however,  the  plaintiff,  in  proving 
the  injury,  shows  contributory  negligence  sufficient  to  de 
feat  the  action,  he  disproves  his  own  case  of  injury  by  the 
negligence  of  the  defendant  alone.  If  the  plaintiff's  evi- 
dence leave  no  doubt  of  the  fact,  his  contributory  negli- 
gence is  taken  as  matter  of  law  to  warrant  a  non-suit.  If 
the  plaintiff's  evidence  leave  the  fact  in  doubt,  the  evidence 
of  contributory  negligence  on  both  sides  should  go  to  the 
jury.  This  was  perhaps  not  as  clearly  stated  as  it  might 
have  been,  and  has  been  criticised.  Properly  understood, 
the  rule  in  Hoyt  v.  Hudson  makes  no  confusion  between 
the  burden  of  proof  and  the  weight  of  evidence ;  is  sounder 
in  principle  and  easier  in  practice  than  the  rule  in  Mas- 
sachusetts which,  with  great  deference ,  for  that  court, 
this  court  then  declined  to  adopt.  The  true  ground  of 
reversal  in  Hoyt  v.  Hudson  was,  that  the  charge  of  the 
court  submitted  the  question  of  contributory  negligence 
to  the  jury,  when  there  was  no  evidence  of  contributory 
negligence  on  either  side;  giving  the  jury  to  believe  that 
the  plaintiff  was  bound  affirmatively  to  disprove  it. 

The  learned  judge  instructed  the  jury  that  if  the  driver 

of  the  carriage  was  so  grossly  negligent  or  careless  as  to 

contribute  to  the  injury,  the  respondent  could  not  recover. 

Travelers  are  always  held  to  the  exercise  of  ordinary  care. 

35 


Opinions  of  Chief  Justice  Ryan  546 

Slight  want  of  ordinary  care  will  defeat  an  action  for  in- 
jury caused  by  defect  in  a  highway.  This  was  perhaps 
what  the  charge  intended.  The  learned  judge  told  the 
jury  elsewhere  that  the  driver  was  held  to  ordinary  pru- 
dence ;  but  said,  in  the  same  connection,  that  if  this  person 
was  driving  as  one  ordinarily  drives,  not  thinking  of  dan- 
ger, and  thus  met  the  accident,  he  was  guilty  of  no  negli- 
gence. All  this,  taken  together,  is  not  very  clear.  Ordi- 
nary care  in  such  a  case,  is  care  against  danger.  It  is 
carelessness,  not  care,  which  in  such  a  case  has  no  thought 
of  danger.  Driving  in  the  dark  without  thinking  of  dan- 
ger, as  one  "whistling  for  want  of  thought,"  is  surely  not 
ordinary  care.  The  fair  inference,  perhaps,  from  the 
somewhat  loose  dicta  of  the  charge,  the  inference  which 
the  jury  probably  drew,  is,  that  want  of  ordinary  care  to 
defeat  the  action  must  be  gross ;  dealing  with  gross  negli- 
gence as  gross  want  of  ordinary  care.  The  degree  of  con- 
tributory negligence  which  will  defeat  an  action  has  been 
repeatedly  settled  by  this  court,  and  may  be  given  to  juries 
without  difficulty  in  plain  and  unambiguous  terms.  Dreher 
v.  Fitchburg,  22  Wis.  675 ;  Ward  v.  Kailway  Co.,  29  id. 
144;  Wheeler  v.  Westport,  supra;  Hammond  v.  Mukwa, 
40  Wis.  35 ;  Griffin  v.  Willow,  43  Wis.  509. 

The  charge  is  still  more  unhappy  in  giving  the  measure 
of  proof  to  establish  contributory  negligence  on  the  part  of 
the  driver.  The  learned  judge  tells  the  jury,  in  effect,  that 
•contributory  negligence  must  be  proved  conclusively  to 
their  minds.  Conclusive  presumptions  relate  rather  to 
matters  of  law  than  matters  of  fact.  When  a  judgment 
•determined  a  fact,  the  fact  is  conclusively  established  be- 
tween the  parties.  But  it  is  conclusive,  by  force  of  the 
judgment,  not  by  force  of  the  evidence  on  which  the  judg- 
ment proceeds.  Evidence  cannot  well  establish  litigated 


547  Prideaux  v.  City  of  Mineral  Point. 

questions  of  mere  fact  conclusively.  Juries  are  never  held 
to  find  mere  matters  of  fact  on  conclusive  evidence.  In 
civil  cases,  preponderance  of  evidence  is  sufficient.  In 
criminal  prosecutions,  guilt  is  to  be  proved  not  conclu- 
sively, but  only  beyond  reasonable  doubt. 

There  is  nothing  elsewhere  in  the  charge  to  obviate  or 
qualify  this  error.  Taken  with  the  rule  of  the  burden  of 
proof,  as  the  jury  must  have  understood  it,  the  charge  is, 
that  the  evidence  given  by  the  appellant  must  conclusively 
satisfy  the  jury  of  contributory  negligence  to  defeat  the 
action.  It  may  be,  as  was  urged,  that  the  verdict  would 
not  have  been  different,  had  the  rule  of  contributory  negli- 
gence, and  of  the  evidence  sufficient  to  establish  it,  been 
correctly  given  to  the  jury.  This  court  cannot  usurp  the 
function  of  the  jury  to  say  so.  There  was  some  evidence 
— it  would  be  improper  to  say  of  what  weight — tending 
towards  contributory  negligence.  And  the  verdict  cannot 
be  sustained  under  the  charge,  if  the  respondents  are  an- 
swerable for  the  negligence  of  the  driver. 

III.  The  case  appears  to  have  been  tried  in  the  court  be- 
low upon  the  theory  that  the  right  of  the  respondent  to  re- 
cover would  be  defeated  by  contributory  negligence  of  the 
driver,  without  personal  negligence  of  the  female  respond- 
ent ;  as  seems  to  have  been  taken  for  granted  by  this  court 
in  Houfe  v.  Fulton,  supra.  But  the  learned  counsel  for 
the  respondents  takes  the  position  here,,  that  his  clients 
are  entitled  to  recover,  notwithstanding  negligence  of  the 
driver;  no  evidence  in  the  case  tending  to  attribute  per- 
sonal negligence  to  the  injured  woman  herself.  And  there 
is  some  authority  for  his  position. 

When  injury  is  caused  by  the  concurring  negligence  of 
two  common  carriers,  it  has  for  many  years  been  a  ques- 
tion, whether  the  negligence  of  the  carrier  by  which  a 


Opinions  of  Chief  Justice  Ryan.  548 

passenger  is  carried  can  be  imputed  to  him  as  contributory 
negligence  in  an  action  against  the  other  carrier.  There 
appears  to  be  no  uniform  rule  of  decision.  In  England 
it  seems  to  have  been  held  that  the  negligence  of  his  own 
carrier  will  defeat  the  action  of  a  passenger  against  the 
other  carrier.  Bridge  v.  O.  J.  Railway  Co.,  3  M.  &  W. 
244;  Thorogood  v.  Bryan,  8  C.  B.  115;  Cattlin  v.  Hills, 
id.  123.  In  £Tew  York,  the  rule  appears  to  be  that  the  in- 
jured passenger  may  recover  in  such  a  case  against  either 
or  both  of  the  carriers.  Chapman  v.  ~N.  H.  Railroad  Co., 
19  K  Y.  341;  Colegrove  v.  K  Y.  &  1ST.  H.  Railroad  Co. 
&  K  Y.  &  H.  Railroad  Co.,  id.  492.  So  it  has  been  held 
in  Kew  Jersey  that  negligence  of  a  carrier  cannot  be  im- 
puted to  a  passenger  carried  by  it  to  defeat  his  recovery 
against  the  other  carrier.  Bennett  v.  13.  J.  Railroad  Co., 
36  K  J.  225;  Lockwood  v.  Lichtenthaler,  46  Pa.  St.  151. 
In  this  case,  Thompson,  J.,  cites  a  Michigan  case1  which 
we  have  not  been  able  to  find,  apparently  favoring  the  ISTew 
York  rule;  and  intimates  that  the  doctrine  of  Smith  v. 
Smith,  2  Pick.  621 ;  C.,  C.  &  C.  Railroad  v.  Terry,  8  Ohio 
St.  570,  and  Puterbaugh  v.  Reasor,  9  id.  484,  are  in  ac- 
cord with  the  rule  of  the  English  Common  Pleas,  which 
we  confess  we  are  not  quite  able  to  perceive. 

Aside  from  questions  of  public  policy  affecting  the  duty 
and  liability  of  common  carriers,  which  enter  into  some 
of  these  cases,  the  question  appears  to  be  how  far  common 
carriers  can  be  considered  as  agents  of  passengers  carried 
by  them.  We  think  that  there  is  no  case  in  this  court 
bearing  on  this  question,  and  it  is  unnecessary  here  to  in- 
dicate an  opinion  upon  it.  It  is  proper  to  say,  however, 

i  Since  this  opinion  was  written,  this  case  was  found  to  be  in- 
correctly quoted.  It  is  D.  L.  &  N.  Turnpike  Co.  v.  Stewart,  2  Mete. 
Ky.  119. 


549  Prideaux  v.  City  of  Mineral  Point. 

that,  in  the  present  state  of  society,  it  is  a  substantial  ne- 
cessity for  all  or  most  travelers  to  avail  themselves  of  pub- 
lic conveyances ;  and  that  there  might  be  great  difficulty  in 
applying  to  them  the  rule  of  personal  trust  and  agency 
applicable  to  private  conveyances. 

In  the  latter  case,  when  the  agency  of  a  person  in  con- 
trol of  a  private  conveyance  is  express,  there  is  no  difficulty 
in  the  rule.  The  contributory  negligence  of  the  servant 
will  defeat  the  master's  action  for  negligence  against  a 
third  person.  And  it  seems  that  there  ought  to  be  as  little 
difficulty  in  the  rule  when  the  agency  is  implied  only.  One 
voluntarily  in  a  private  conveyance,  voluntarily  trusts  his 
personal  safety  in  the  conveyance  to  the  person  in  control 
of  it.  Voluntary  entrance  into  a  private  conveyance  adopts 
the  conveyance  for  the  time  being  as  one's  own,  and  as- 
sumes the  risk  of  the  skill  and  care  of  the  person  guiding 
it.  Pro  hac  vice.,  the  master  of  a  private  yacht  or  the 
driver  of  a  private  carriage  is  accepted  as  agent  by  every 
person  voluntarily  committing  himself  to  it.  When  pater- 
familias drives  his  wife  and  child  in  his  own  vehicle,  he 
is  surely  their  agent  in  driving  them,  to  charge  them  with 
his  negligence.  It  is  difficult  to  perceive  on  what  principle 
he  is  less  the  agent  of  one  who  accepts  his  or  their  invi- 
tation to  ride  with  them.  There  is  a  personal  trust  in  such 
cases,  which  implies  an  agency.  So  several  persons  volun- 
tarily associating  themselves  to  travel  together  in  one  con- 
veyance, not  only  put  a  personal  trust  in  the  skill  and  care 
of  that  one  of  them  whom  they  trust  with  the  direction 
and  control  of  the  conveyance,  but  appear  to  put  a  personal 
trust  each  in  the  discretion  of  each  against  negligence  af- 
fecting the  common  safety.  One  enters  a  public  convey- 
ance, in  some  sort,  of  moral  necessity.  One  generally  en- 
ters a  private  conveyance  of  free  choice ;  voluntarily  trust- 


Opinions  of  Chief  Justice  Ryan.  550 

ing  to  its  sufficiency  and  safety.  It  appears  absurd  to 
hold  that  one  voluntarily  choosing  to  ride  in  a  private  con- 
veyance, trusts  to  the  sufficiency  of  the  highway,  to  the  care 
and  skill  exercised  in  all  other  vehicles  upon  it,  to  the 
care  and  skill  governing  trains  at  railroad  crossings,  to  the 
care  and  skill  of  everything  except  that  which  is  most  im- 
mediately important  to  himself ;  and  trusts  nothing  to  the 
sufficiency  of  the  very  vehicle  in  which  he  voluntarily 
travels,  nothing  to  the  care  or  skill  of  the  person  in  charge 
of  it.  His  voluntary  entrance  is  an  act  of  faith  in  the 
driver;  by  implication  of  law,  accepts  the  driver  as  his 
agent  to  drive  him.  In  the  absence  of  express  adjudica- 
tion, the  general  rules  of  implied  agency  appear  to  sanc- 
tion this  view. 

Beck  v.  E.  R.  Ferry  Co.,  6  Roberts,  82,  turned  upon 
the  liability  of  a  steam  vessel  for  the  death  of  one  of  a 
party  in  a  small  boat,  apparently  a  pleasure  boat.  Con- 
tributory negligence  of  the  party  in  the  boat  was  a  ques- 
tion in  the  case.  And  it  is  said:  "The  deceased  was  un- 
doubtedly chargeable  with  any  neglect  of  his  comrades,  as 
well  as  his  own,  to  do  every  act  to  avoid  danger  and  insure 
safety,  at  least  unless  he  did  all  he  could  to  repair  the  de- 
ficiency. None  of  them  stood  in  the  light  of  either  em- 
ployer or  employed  to  the  other;  it  was  a  joint  expedition, 
in  which  each  was  liable  for  the  acts  and  omissions  of  the 
other,  unless  he  took  some  separate  steps  to  repair  or  pre- 
vent the  result  of  the  negligence  of  the  others." 

This  case  is  not  expressly  overruled,  but  seems  rather  to 
be  approved  in  Robinson  v.  E".  Y.  C.  Railroad  Co.,  66  !N". 
Y.  11.  But  the  two  cases  appear  none  the  less  to  conflict 
in  principle.  Robinson  v.  Railroad  Co.  turned  upon  lia- 
bility for  injury  by  a  railroad  train  to  a  female,  voluntar- 


551  Prideaux  v.  City  of  Mineral  Point. 

ily  riding  with  a  male  friend  on  his  invitation.  The  court 
holds  that  the  action  was  not  defeated  by  the  man's  con- 
tributory negligence.  The  court  remarks  that  the  man 
and  woman  were  not  engaged  in  a  joint  enterprise,  in  the 
sense  of  mutual  responsibility  for  each  other's  acts,  as  in 
Beck  v.  Ferry  Co.  It  is  difficult  to  comprehend  the  dis- 
tinction. The  court  says  that  it  was  the  case  of  a  gratui- 
tous ride,  by  a  female,  upon  the  invitation  of  the  owner  of 
a  horse  and  carriage.  Doubtless ;  but  there  was  the  same 
mutual  agreement  of  the  two  to  travel  together,  as  of  the 
several  to  sail  together,  in  Beck  v.  Ferry  Co.  These  were, 
in  contemplation  of  law,  as  much  in  the  same  boat  as  those. 
A  woman  may  and  should  refuse  to  ride  with  a  man,  if 
she  dislike  or  distrust  the  man,  or  his  horse,  or  his  car- 
riage. But  if  she  voluntarily  accept  his  invitation  to  ride, 
the  man  may,  indeed,  become  liable  to  her  for  gross  negli- 
gence ;  but  as  to  third  persons,  the  man  is  her  agent  to  drive 
her — she  takes  man  and  horse  and  carriage  for  the  jaunt, 
for  better,  for  worse. 

Speaking  of  the  position  of  counsel,  that  the  woman  vol- 
untarily entrusted  her  safety  to  the  man's  care  and  pru- 
dence, and  exposed  herself  to  risk  from  his  negligence  or 
want  of  skill,  the  court  says :  "If  this  argument  is  sound, 
why  should  it  not  apply  in  all  cases  to  public  conveyances 
as  well  as  private?  The  acceptance  of  an  invitation  to 
ride  creates  no  more  responsibility  for  the  acts  of  the 
driver,  than  the  riding  in  a  stage  coach,  or  even  a  train  of 
cars."  The  same  court  in  another  case  truly  declares  that 
traveling  by  public  lines  of  carriage  has  become  a  practical 
necessity.  And  this  question  appears  to  be  briefly  but  suf- 
ficiently answered  by  itself  in  Chapman  v.  N".  H.  Railroad 
Co.,  supra.  Speaking  of  the  plaintiff  in  that  case,  it  is 


Opinions  of  Chief  Justice  Ryan.  552 

said:  "He  was  a  passenger  on  the  Harlem  cars  .  .  . 
bound  to  submit  to  the  regulations  of  the  company  and  the 
directions  of  their  officers.  .  .  .  He  had  no  control,  no 
management,  even  no  advisory  power,  over  the  train  on 
which  he  was  riding.  Even  as  to  selection,  he  has  only  the 
choice  of  going  by  that  railroad  or  by  none."  Indeed,  it 
seems  little  less  than  idle  to  compare  the  relation  of  a 
woman  voluntarily  riding  for  her  pleasure  with  her  lover, 
friend  or  relative  in  his  carriage,  with  the  relation  of  a 
passenger  to  the  carrier  on  whose  cars  or  vessel  he  is  prac- 
tically obliged  to  travel 

To  the  same  effect  are  Knapp  v.  Dagg,  18  How.  Pr.  165, 
and  Metcalf  v.  Baker,  11  Abbott,  N".  S.  431,  also  cited  by 
the  respondent's  counsel,  on.  which  particular  comment  is 
unnecessary. 

These  are  all  the  cases  cited  by  counsel.  The  question 
was  suggested  rather  than  argued  on  one  side,  and  not 
mentioned  on  the  other.  We  have  had  brief  opportunity 
to  search  for  adjudications  on  the  subject:  another  in- 
stance of  the  dependence  of  the  court  on  the  bar.  We  have 
found  but  one  other  case,  a  very  elaborate  one,  though  this 
point  is  decided  rather  than  discussed,  as  in  Houfe  v.  Ful- 
ton, supra.  The  facts  of  the  case  make  it  a  very  strong 
one.  A  female  servant  was  riding  with  her  master  in  his 
wagon,  which  was  wrecked  by  a  railroad  train.  The  mas- 
ter was  guilty  of  contributory  negligence,  against  which 
servant  appears  to  have  warned  him.  Yet  his  contribu- 
tory negligence  was  held  to  defeat  her  action  against  the 
the  railroad  company.  L.  S.  &  M.  S.  Railroad  Co.  v.  Mil- 
ler, 25  Mich.  2T4. 

This  view  appears  to  be  sounder  in  principle  and  safer 
in  practice  than  the  rule  in  Robinson  v.  Railroad  Co.  And 


553  Note  to  Prideaux  v.  City  of  Mineral  Point. 

this  court  adheres  to  the  rule  of  decision  in  Houfe  v.  Ful- 
ton. 

By  the  Court. — The  judgment  is  reversed,  and  the  case 
remanded  to  the  court  below  for  a  new  trial. 

NOTE. 

(Each  case  in  the  note  after  which  is  placed  the  figure 
(2)  relates  to  the  subject  discussed  in  the  foregoing  opin- 
ion numbered  I;  those  numbered  (2)  relate  to  the  subject 
in  the  opinion  numbered  II ;  ete. ) 

Prideaux  v.  Citj  of  Mineral  Point,  supra,  has  been 
cited  with  approval  by  the  Supreme  Court  of  Wisconsin, 
as  follows:  Curry  v.  C.  &  K  W.  Ry.,2  43  Wis.  675 ;  Bene- 
dict v.  City  of  Fond  du  Lac,2  44  Wis.  496;  Krueger  v. 
Bronson,2  45  Wis.  199;  Otis  v.  Town  of  Janesville,3  47 
Wis.  422  ;  James  v.  City  of  Portage,1  48  Wis.  679  ;  Mutcha 
v.  Pierce,1  49  Wis.  234;  Fitzgerald  v.  Town  of  Weston,1 
52  Wis.  357 ;  Randall  v.  K".  W.  Tel.  Co.,2  54  Wis.  147 ; 
Stilling  v.  Town  of  Thorp,3  54  Wis.  537;  Lockwood  v. 
C.  &  N.  W.  Ry.,3  55  Wis.  66 ;  Hoth  v.  Peters,2  55  Wis. 
410,  411;  Heth  v.  City  of  Fond  du  Lac,1  63  Wis.  233; 
Seymer  v.  Town  of  Lake,2  66  Wis.  657 ;  Adams  v.  City  of 
Oshkosh,2  71  Wis.  52 ;  Koenig  v.  Town  of  Arcadia,1'  2 
75  Wis.  66 ;  Goeltz  v.  Town  of  Ashland,2  75  Wis.  645 ; 
Grisim  v.  Milwaukee  City  Ry.,1  84  Wis.  22;  Duthie  v. 
Town  of  Washburn,2  87  Wis.  233 ;  Shillinger  v.  Town  of 
Verona,1  88  Wis.  321 ;  Ritger  t>.  City  of  Milwaukee,3  99 
Wis.  197;  Xass  v.  Shulz,2  105  Wis.  151;  Whitty  v.  City 
of  Oshkosh,2  106  Wis.  91 ;  Morrison  v.  Eau  Claire,1  115 
Wis.  545;  Schrunk  v.  St.  Joseph,2  120  Wis.  229;  Light- 
foot  v.  Winnebago  Traction  Co.,8  123  Wis.  487. 

It  has  been  cited  approvingly  outside  of  the  Wisconsin 
Supreme  Court,  as  follows:  Behrens  v.  K.  P.  Ry.,2  5 
Colo.  404;  Gould  v.  City  of  Topeka,1-  2  32  Kan.  491 ;  City 
of  Lincoln  v.  Walker,2  18  Xeb.  247,  264;  O.  &  R.  Ry.  v. 
Talbot,3  48  Xeb.  635. 


Opinions  of  Chief  Justice  Ryan.  554 

It  has  been  cited  disapprovingly  outside  of  the  Wiscon- 
sin Supreme  Court,  as  follows:  Follman  v.  City  of  Man- 
kato,3  35  Minn.  524,  57  Am.  Rep.  488 ;  Noyes  v.  Bosca- 
wen,3  64  N.  H.  363,  10  Am.  St.  Rep.  411 ;  Transfer  Co. 
v.  Kelly,3  36  Oh.  St.  92,  38  Am.  Rep.  560;  St.  Clair  Ry. 
Co.  v.  Eadie,3  43  Oh.  St.  97,  54  Am.  Rep.  145 ;  Dean  v. 
Pa.  Ry.,3  129  Pa.  St.  522,  15  Am.  St.  Rep.  736,  6  L.  R. 
A.  144;  N.  Y.  P.  &1ST.  Ry.  v.  Cooper,3  85  Va.  942. 

In  some  states  a  distinction  seems  to  have  been  made  be- 
tween cases  in  which  the  conveyance  was  a  private  one 
hired  by  the  injured  party,  and  those  in  which  the  convey- 
ance was  a  public  one;  the  doctrine  of  agency  being  held 
to  apply  only  to  the  former  case.  See  Payne  v.  C.  R.  I.  & 
P.  Ry.,3  39  la.  523;  Cuddy  v.  Horn,3  46  Mich.  596; 
Prideaux  v.  City  of  Mineral  Point,3  supra. 

The  doctrine  of  the  Prideaux  Case,  supra,  has  been  re- 
jected in  the  following  decisions  (only  those  marked  with 
a  star  citing  Prideaux  v.  Mineral  Point,  supra:  Tomp- 
kins  v.  Clay  St.  R.,2-  3  66  Cal.  163;  W.  St.  L.  &  P.  Ry. 
v.  Shacklet,2'  3  105  111.  364 ;  D.  L.,  etc.,  Co.  v.  Stewart,3 
(Ky.)  12  Mete.  122;  L.  C.  &  L.  R.  Co.  v.  Case,3  72  Ky. 
728;  State  v.  B.  &  M.  Ry.,2-  3  80  Me.  430;  P.  W.  &  B. 
Ry.  v.  Hogeland,2'  3  66  Md.  149 ;  Cuddy  v.  Horn,3  46 
Mich.  596;  *Follman  v.  Mankato,3  35  Minn.  522;  Ben- 
nett v.  K  J.,  etc.,  Co.,3  36  K  J.  L.  225 ;  N.  Y.,  etc.,  Co. 
v.  Steinbrunner,3  47  1ST.  J.  L.  161 ;  *Noyes  v.  Boscawen,3 
64  K  H.  361 ;  Robinson  v.  New  York  Central,3  66  N.  Y. 
11 ;  Dyer  v.  Erie  Ry.,3  71  K  Y.  228 ;  Masterson  v.  New 
York  Central,3  84  N.  Y.  247 ;  Bergold  v.  Nassau  El.  Co.,3 
30  A.  D.  445 ;  Venuta  v.  N.  Y.,  etc.,  Co.,2-  3  87  A.  D.  566. 

The  doctrine  of  the  Prideaux  Case,  supra,  to  the  effect 
that  the  driver  of  a  private  conveyance  is  the  agent  of  the 
person  in  such  conveyance,  so  that  his  negligence,  contrib- 
uting to  the  injury  complained  of  by  such  person,  as  caused 
by  a  defective  highway,  will  defeat  the  action,  has  been 
recognized  and  sustained  in  the  following  decisions :  Payne 
v.  C.  R.  I.  &  P.  Ry.,3  39  la.  523 ;  Nesbit  v.  Town  of  Gar- 
ner,3 75  la.  316,  1  L.  R.  A.  153;  (Doctrine  approved  in 


555  Note  to  Prideaux  v.  City  of  Mineral  Point. 

Barnes  v.  Town  of  Marcus,3  96  la.  67" 7)  ;  Carlisle  v.  Shel- 
don,3 38  Vt.  440 ;  Boyden  v.  Fitchburg  Ej.,3  72  Vt.  99. 

Valuable  notes  to  cases  reported  in  L.  E.  A.,  Am.  Dec., 
Am.  St.  Eep.,  Am.  Eep.  and  Am.  &  Eng.  Ey.  Gas.,  col- 
lecting the  authorities  will  be  found  as  follows : 

Lawyers'  Reports  Annotated:  Harrah  v.  Jacobs  (75  la. 
72),  1  L.  E.  A.  153 ;  Eodger  v.  Lees  (140  Pa.  475).  12  L. 
E.  A.  217;  L.  K  A.  &  C.  Ey.  v.  Creek  (130  Ind.  139)r 
14  L.  E.  A.  733 ;  Ely  v.  Des  Moines  (86  la.  55),  17  L.  E. 
A.  126;  O.  &  M.  Ey.  v.  Stein  (133  Ind.  243),  19  L.  E. 
A.  751;  Stone  v.  Seattle  (30  Wash.  65),  67  L.  E.  A.  266. 

American  Decisions:  Dreher  v.  Town  of  Fitchburg  (22 
Wis.  675),  99  Am.  Dec.  96;  People  v.  Vernon  (35  Cal. 
49),  95  Am.  Dec.  53;  Flournoy  v.  City  of  Jeffersonville 
(17  Ind.  169),  79  Am.  Dec.  476. 

American  State  Reports:  Nesbit  v.  Town  of  Garner 
(75  la.  314),  9  Am.  St.  Eep.  491;  Bouldin  v.  Mclntire 
(119  Ind.  574),  12  Am.  St.  Eep.  460. 

American  Reports:  Cassidy  v.  Angell  (12  E.  I.  447), 
34  Am.  Eep.  691 ;  Masterson  v.  K  Y.  C.  &  H.  E.  Ey.  (84 
1ST.  Y.  247),  38  Am.  Eep.  515;  Buesching  v.  St.  Louis 
Gaslight  Co.  (73  Mo.  219),  39  Am.  Eep.  511;  B.  &  L. 
Turnpike  Co.  v.  CasseU  (66  Md.  419),  59  Am.  Eep.  179. 

American  &  English  Railway  Cases:  Toledo,  etc.,  Ey. 
v.  Brannagan  (75  Ind.  490),  59  Am.  &  Eng.  Cas.  634; 
Gray  v.  P.  &  E.  Ey.  (24  Fed.  168),  22  Am.  &  Eng.  Ey. 
Cas.  359. 

Thorogood  v.  Bryan,  8  C.  B.  115  (affirmed  in  Arm- 
strong v.  Ey.  Co.,  L.  E.  10  Exch.  47),  cited  in  Prideaux 
v.  Mineral  Point,  supra,  and  relied  on  for  the  doctrine 
that  the  driver  of  a  conveyance,  even  a  public  one,  is  the 
agent  of  a  passenger,  so  that  his  contributory  negligence 
will  defeat  the  claim  of  the  passenger  for  injuries  sustained 
as  the  result  of  a  collision,  has  been  most  widely  com- 
mented on,  and  in  the  great  majority  of  cases  with  disap- 
proval. Justice  Field  remarked  in  Little  v.  Hackett,  116 
TJ.  S.  366,  "The  decision  in  Thorogood  •  v.  Bryan,  rests 
upon  indefensible  grounds."  Together  with  Armstrong 


Opinions  of  Chief  Justice  Ryan.  556 

v.  Ky.,  supra,  it  was  overruled  in  ^The  Bernina,"  L.  E. 
12  Prob.  Div.  58,  Lord  Esher  saying  in.  the  course  of  his 
opinion,  after  quoting  Justice  Field  in  Little  v.  Hackett, 
supra/''  *  *  *  having  considered  the  case  of  Thoro- 
good  v.  Bryan  we  cannot  see  any  principle  on  which  it  can 
be  supported."  The  case  is  mentioned  at  such  length  here 
because  it  has  been  largely  responsible  for  the  adherence 
to  the  agency  doctrine  in  the  courts  of  certain  of  the  states. 


557  Cuny  v.  Chicago,  N.  W.  Ry.  Co. 


Curry  v.  Chicago  &  Northwestern  Railway  Company. 

January  Term,  1878. 
(43  Wis.  665.) 

This  was  an  action  brought  in  the  circuit  court  of  Sauk 
County  for  the  value  of  a  cow  alleged  to  have  strayed  upon 
defendant's  railroad  track  at  a  point  where  the  same  had 
never  been  fenced,  and  to  have  been  there  killed  by  one  of 
defendant's  trains,  without  fault  on  plaintiff's  part.  It 
was  admitted  at  the  trial  that  there  were  about  300  or  400 
acres  of  uninclosed  land  near  the  station  of  Ableman. 
Plaintiff's  cow  was  running  at  large  and  pasturing  on  such 
uninclosed  land.  It  was  admitted  that  defendant's  road 
had  been  in  operation  for  a  number  of  years ;  that  its  track 
was  not  fenced  as  the  statute  required  through  the  lands 
in  question  and  at  the  place  of  the  injury.  It  was  agreed 
that  plaintiff  was  guilty  of  no  negligence  unless  permitting 
his  cow  to  be  at  large  under  the  circumstances  was  negli- 
gence, and  that  defendant  was  guilty  of  no  negligence, 
unless  its  failure  to  fence  was,  under  the  circumstances, 
negligence.  The  trial  judge  refused  to  direct  a  verdict 
for  the  defendant  but  submitted  the  case  to  the  jury.  The 
plaintiff  had  a  verdict  and  judgment  and  the  defendant 
appealed.  The  other  facts  are  sufficiently  stated  in  the 
opinion. 

The  following  are  the  propositions  of  law  decided: 

Sees.  30  and  31,  ch.  119,  of  1872  (requiring  railroads 
to  be  fenced,  and  declaring  the  liabilities  of  com- 
panies for  injuries  to  domestic  animals  occasioned 
by  failure  to  fence),  are  not  repealed  or  modified  by 


•Opinions  of  Chief  Justice  Ryan.  558 

ch.  248  of  1875 ;  but  the  provisions  of  the  latter  are 
cumulative  to  those  of  the  former. 

In  an  action  against  a  railroad  company  for  injury  oc- 
casioned by  failure  either  to  erect  or  to  maintain 
fences  on  the  line  of  its  road,  as  in  other  actions  for 
negligence,  contributory  negligence  of  the  plaintiff 
is  a  defense.  The  cases  in  this  court  on  the  subject 
reviewed. 

In  such  action,  for  injury  to  a  domestic  animal,  the 
mere  fact  that  the  animal  was  a  trespasser  on  defend- 
ant's road,  or  that  it  passed  thereon  from  land  not  be- 
longing to  the  plaintiff,  will  not  defeat  a  recovery. 

Plaintiff,  living  about  three-fourths  of  a  mile  from  de- 
fendant's track,  which  he  knew  to  be  unfenced,  per- 
mitted his  cow  to  pasture,  in  summer  (presumably 
with  other  cattle),  on  a  large  tract  of  uninclosed 
grass  land,  extending  from  the  neighborhood  of  his 
residence  to  the  track ;  and  she  passed  upon  the  track 
from  said  land,  and  was  injured.  Held,  that  upon 
these  facts  the  question  of  contributory  negligence, 
being  open  to  doubt  and  debate,  was  for  the  jury. 
Lawrence  v.  Railway  Co.,  42  Wis.  322,  distinguished. 

RYAN,  C.  J.  I.  Ch.  248  of  1875  cannot  be  taken  to 
repeal  or  modify  sees.  30  and  31  of  ch.  119  of  1872. 

"This  is  a  question  of  constructive  repeal.  In  Attor- 
ney General  v.  Brown,  1  Wis.  513,  this  court  adopted  the 
uniform  rule  of  governing  such  cases.  If  there  be  two  af- 
firmative statutes  upon  the  same  subject,  one  does  not  re- 
peal the  other,  if  both  may  consist  together ;  and  we  ought 
to  seek  for  such  construction  as  will  reconcile  them." 
.  .  .  Attorney  General  v.  Railroad  Companies,  35 
Wis.  425. 


559  Curry  v.  Chicago,  N.  W.  Ry.  Co. 

The  two  statutes  here  in  question  may  not  only  stand 
together,  but  the  provisions  of  the  later  were  obviously 
designed  to  be  cumulative  to  the  provisions  of  the  earlier. 

Neither  do  they  fall  within  the  rule,  that  a  later  stat- 
ute revising  the  subject  of  an  earlier  statute,  works  a  re- 
peal of  the  latter.  Lewis  v.  Stout,  22  Wis.  234;  Burlan- 
der  v.  Railroad  Co.,  26  id.  76;  Simmons  v.  Bradley,  27 
id.  689 ;  Moore  v.  Eailway  Co.,  34  id.  173 ;  Olson  v.  Rail- 
way Co.,  36  id.  383.  For  the  chapter  of  1875  does  not  at- 
tempt to  revise  the  provisions  of  1872;  does  not  purport 
to  cover  the  whole  ground ;  and  would  obviously  be  a  very 
defective  statute  by  itself. 

The  sections  of  the  general  railroad  act  of  1872  require 
railroads  to  be  fenced,  and  declare  the  liability  of  the 
companies  for  injury  to  domestic  animals  occasioned  by 
failure  to  fence.  When  such  fences  are  made  and  main- 
tained, these  sections  declare  that  the  companies  shall  be 
liable  only  for  willful  or  otherwise  negligent  injury.  They 
proceed  to  declare  the  liability  of  individuals  for  placing 
domestic  animals  on  railroads,  and  make  other  provisions 
tending  to  prevent  accidents  on  railroads. 

The  chapter  of  1875  requires  railroads,  two  years  or 
more  in  operation,  to  be  fenced  through  inclosed  lands; 
and,  upon  failure  of  the  company,  authorizes  occupants  of 
inclosed  lands  to  give  notice  to  the  companies  to  fence; 
and,  upon  continued  failure,  gives  an  action  to  occupants 
against  the  companies  for  a  penalty  for  every  train  pass- 
ing through  their  inclosed  lands. 

Manifestly,  these  penalties  given  upon  default  to  fence, 
without  consequent  injury,  are  not  a  substitute  for  the 
liability  for  actual  injuries  declared  by  the  sections  of 
1872.  The  penalties  are  a  distinct  and  independent  rem- 
edy to  force  railroad  companies  to  fence  against  danger 


Opinions  of  Chief  Justice  Ryan.  560 

of  accident.  The  action  given  by  the  statute  of  1875  goes 
upon  an  essentially  different  ground  from  the  action  given 
by  the  statute  of  1872.  The  one  is  penal,  by  way  of  co- 
ercion; the  other  is  remedial  for  actual  damages  sus- 
tained. And,  under  the  conditions  given  in  the  act  of 
1875,  actions  for  penalties  for  not  fencing,  and  actions 
for  damages  occasioned  by  failure  to  fence,  would  lie  to- 
gether, penalties  recovered  not  going  to  compensation  for 
damages  sustained,  and  damages  recovered  for  actual  in- 
juries not  satisfying  penalties  incurred. 

The  first  section  of  the  chapter  of  1875  requiring  rail- 
roads in  operation  for  two  years  to  be  fenced  through  in- 
closed lands,  is  plainly  intended  to  state  the  conditions 
under  which  notice  may  be  given  under  the  second  section. 
The  two  sections  are  clearly  dependent.  And  the  state- 
ment of  the  conditions  under  which  the  notice  may  be 
given  and  the  penalty  recovered,  were  plainly  not  designed, 
and  cannot  be  held,  to  change  the  duty  or  liability  of  rail- 
road companies  declared  by  the  statute  of  1872.  The  lat- 
ter is  the  general  statute,  governing  all  railroads,  always, 
under  all  conditions.  The  former  is  a  particular  statute, 
applying  to  particular  railroads,  under  particular  condi- 
tions; and  so  applying  as  not  to  suspend  or  interfere  with 
any  provision  of  the  general  statute,  but  giving  additional 
remedies  of  its  own,  under  particular  conditions,  in  aid 
of  the  provisions  of  the  general  statute. 

It  is  needless  to  point  out  the  essential  details  of  the 
general  statute  which  the  particular  statute  does  not  at- 
tempt to  cover,  because  it  was  not  meant  for  a  revising, 
but  only  for  a  cumulative,  statute. 

This  case  is  therefore  to  be  determined  under  the  pro- 
visions of  the  general  railroad  act. 

II.  Assuming  the  appellant's  duty  to  have  fenced  its 


561  Curry  v.  Chicago,  N.  W.  Ry.  Co. 

road  at  the  locus  in  quo,  the  respondent's  right  to  recover 
was  put,  upon  the  trial  below,  upon  the  question  of  his 
contributory  negligence.  And  the  first  question  to  be  de- 
termined here  is,  whether  contributory  negligence  of  a 
plaintiff  enters  into  the  defense,  in  an  action  against  a 
railroad  company  for  injury  to  domestic  animals  occa- 
sioned by  total  failure  to  fence  the  road. 

It  has  been  generally  understood  by  the  profession,  for 
years  past,  that  this  court  held  the  liability  of  railroad 
companies  in  that  case  to  be  absolute.  McCall  v.  Cham- 
berlain, 13  Wis.  637,  has,  it  is  believed,  been  generally 
credited  with  the  establishment  of  the  rule.  But  a  criti- 
cal examination  of  the  late  Mr.  Justice  Paine's  opinion 
in  that  case  does  not  appear  to  warrant  that  view.  Doubt- 
less there  are  things  said  in  the  case,  arguendo,  appearing 
to  tend  that  way.  But  the  question  on  which  the  opinion, 
turns  is,  whether  the  mere  fact  that  the  animals  were  tres- 
passers, would  defeat  the  action.  Of  course  all  animals 
upon  a  railroad,  except  at  legal  crossings  or  by  license,  are 
trespassers.  And  the  mere  fact  of  trespass  in  such  a  case 
has  rarely,  if  ever,  been  held  to  excuse  injury  occasioned 
by  negligence  of  the  railroad  company,  however  the  negli- 
gence may  arise.  Certainly  not  in  this  court.  Stucke  v* 
Eailroad  Co.,  9  Wis.  202 ;  C.  &  K  W.  E'y  Co.  v.  Goss, 
17  id.  428.  The  trespass  may  come  with  or  without  neg- 
ligence of  the  owner  of  the  animal  trespassing.  The 
question  of  contributory  negligence  is  therefore  quite  dif- 
ferent from  the  question  of  trespass.  And  so  contribu- 
tory negligence  of  the  plaintiff  is  not  only  not  discussed, 
but  not  mentioned,  in  McCall  v.  Chamberlain. 

It  has  perhaps  been  sometimes  supposed  that  the  same 
learned  and  lamented  judge  affirmed  the  rule  of  absolute 
liability  for  failure  to  fence,  in  his  opinion  in  Antisdel 
36 


Opinions  of  Chief  Justice  Ryan.  562 

v.  Railway  Co.,  26  Wis.  145.  That  would  be  a  great 
mistake.  The  question  of  contributory  negligence  is  not 
considered  in  the  opinion.  It  is  very  significant,  how- 
ever, that  in  that  case,  which  turned  upon  negligence  of 
the  railroad  company  in  not  maintaining  its  fence,  the 
charge  of  the  court  below  distinctly  submitted  to  the  jury 
the  question  of  contributory  negligence,  as  a  defense  to 
the  action.  This  appears  in  the  record,  though  not  in  the 
report.  There  is  no  doubt  expressed  in  the  opinion  of  the 
accuracy  of  the  charge;  and  this  silence  may  have  some 
effect  in  the  construction  of  the  opinion.  It  is  held  in 
that  case  that  the  statute  requiring  railroad  companies 
to  maintain  fences,  though  absolute  in  terms,  does  not  im- 
pose impossibilities  upon  railroad  companies;  but  only 
holds  them  to  a  high  degree  of  diligence.  There  are 
phrases  in  the  opinion  which,  like  some  in  McCall  v. 
Chamberlain,  recognize  an  absolute  liability  for  not  build- 
ing fences.  But  the  opinion  seems  to  disclose  the  sense 
in  which  that  term  is  used.  The  duty  of  railroad  com- 
panies to  fence  their  roads  is  declared  to  be  the  same  as 
ithe  duty  of  towns  to  make  their  *  ighways  sufficient,  and 
both  are  said  to  be  absolute  in  terms  by  statute.  The  lia- 
bility in  both  cases  is  said  to  be  the  same,  and  alike  abso- 
lute in  terms  by  statute.  This  is  said  of  the  duty  in  prin- 
cipio,  and  of  the  failure  to  perform  it.  So  the  opinion 
holds  of  the  duty  to  maintain,  and  of  the  liability  for  not 
maintaining.  The  duty  of  a  railroad  company  to  main- 
tain its  fences  once  built,  is  declared  to  be  the  same  as 
the  duty  of  a  town  to  keep  its  highways  sufficient,  once 
made  so ;  and  both  are  said  to  be  absolute  in  terms  by  stat- 
ute. The  liability  in  both  cases  is  said  to  be  the  same, 
and  alike  absolute  in  terms  by  statute. 

This  appears  to  be  an  accurate  statement  of  the  law. 


563  Cwrv  v.  Chicago,  N.  W.  Ry.  Co. 

For  the  statute  governing  railroad  companies  and  towns, 
and  declaring  their  liability  for  failure  of  duty,  in  these 
respects,  are  alike  absolute.  And  they  do  not  distinguish 
between  the  duty  of  railroad  companies  to  build  and  their 
duty  to  maintain  fences  or  between  their  liability  for  fail- 
ure to  build  and  for  failure  to  maintain;  do  not  distin- 
guish between  the  duty  of  towns  to  make  their  highways 
sufficient,  and  their  duty  to  keep  them  sufficient,  or  be- 
tween their  liability  for  failure  to  make  them  and  for  fail- 
ure to  keep  them  so.  This  appears  to  be  held  in  all  the 
cases.  And  when  Mr.  Justice  Paine  says  of  one  of  these 
duties,  that  it  holds  railway  companies,  not  to  an  absolute 
•duty  under  all  conditions,  but  only  to  a  high  degree  of 
diligence,  his  opinion  appears  not  only  to  imply  the  ap- 
plication of  that  rule  to  all  of  those  duties,  but  also  to 
imply  the  application  of  the  rule  of  contributory  negli- 
gence to  cases  going  upon  failure  to  perform  any  of  them. 
For  the  opinion  appears  to  put  the  right  of  action,  as  it 
undoubtedly  is,  as  for  negligence.  And  the  rule  is  uni- 
versal that,  in  actions  for  injury  by  negligence,  contribu- 
tory negligence  sufficient  in  degree  will  defeat  them. 

The  comparison  of  the  duties  and  liabilities  of  railroad 
companies  and  towns,  in  these  respects,  is  a  happy  one. 
And  yet  no  case  is  remembered,  in  which  this  court  has 
distinguished  between  the  liability  of  a  town  for  injury 
caused  by  a  highway  never  worked  and  defective  ab 
initio,  and  by  a  highway  once  sufficient  and  afterward  be- 
coming defective,  except  upon  the  mere  question  of  notice. 
And  that  is  really  a  distinction  without  a  difference;  for 
a  town  is  presumed  to  have  notice  of  the  highways  which 
it  has  failed  to  work.  And  no  case  is  remembered  in 
which  this  court  has  held  that  contributory  negligence 
would  not  defeat  such  an  action  against  a  town,  going 


Opinions  of  Chief  Justice  Ryan.  564 

either  upon  original  or  upon  subsequent  defect  of  a  high- 
way. Actions  for  negligence  impute  the  injury  to  the 
negligence  of  the  defendant  alone.  When  the  negligence 
of  both  parties  co-operates  alike  in  producing  the  injury, 
the  action  does  not  lie.  Hoyt  v.  Hudson,  41  Wis.  105; 
Prideaux  v.  Mineral  Point,  43  Wis.  513. 

The  views  expressed  in  Antisdel  v.  Railway  Co.  appear 
to  be  quite  inconsistent  with  the  rule  previously  affirmed 
in  Brown  v.  Railway  Co.  and  Sika  v.  Railway  Co.,  cited 
infra. 

The  absolute  liability  of  railroad  companies  for  in- 
juries on  unfenced  roads,  without  reference  to  contribu- 
tory negligence,  is  not  held  in  Bennett  v.  Railway  Co.,  19 
Wis.  145.  The  question  was  not  in  that  case,  where  the 
animal  appears  to  have  gone  upon  the  track  from  depot 
grounds  not  required  to  be  fenced,  by  negligence  of  the 
owner.  It  is  said,  indeed,  in  the  opinion  of  Mr.  Justice 
Cole,  that  if  the  animal  had  strayed  upon  the  road  from  a 
place  which  the  statute  required  to  be  fenced,  and  which 
the  company  had  not  fenced,  the  company  would  be  liable 
by  reason  of  that  neglect,  without  reference  to  negligence 
of  the  train  which  caused  the  injury;  citing  McCall  v. 
Chamberlain.  But  that  signifies  only  that  failure  to 
fence  is  negligence,  and  the  question  of  contributory  neg- 
ligence, in  such  a  case,  is  not  considered  or  mentioned. 

Blair  v.  Railway  Co.,  20  Wis.  254,  does  not  pass  upon 
the  question,  but  strongly  suggests  that  contributory  neg- 
ligence would  defeat  an  action  for  injury  caused  by  the 
company's  failure  to  fence.  That  was  an  action  by  a  pas- 
senger against  the  company  as  a  common  carrier  of  pas- 
sengers, for  injuries  received  in  consequence  of  the  failure 
to  fence.  Of  course  a  more  stringent  rule  would  apply 
there,  than  in  case  of  injury  to  trespassing  animals.  There 


565  Curry  v.  Chicago,  N.  W.  Ry.  Co. 

was  no  pretense  of  contributory  negligence.  But  the 
chief  justice  emphasizes  the  fact  that  there  was  none,  as 
if  he  thought  that  contributory  negligence  would  defeat 
the  action ;  adding  that  "the  injury  resulted  solely  and  ex- 
clusively from  the  failure  of  the  company  to  perform  a 
positive  and  unqualified  duty  imposed  by  statute."  This 
is  the  true  view  of  an  action  for  negligence,  going  upon 
the  sole  negligence  of  the  defendant,  without  contributory 
negligence  of  the  plaintiff. 

So  far  it  appears  to  be  clear  that  the  rule  of  absolute 
liability  had  not  been  adopted;  and  that  intimations  in 
favor  of  such  a  rule  were  apparently  neutralized  by  inti- 
mations against  it.  But  in  Brown  v.  Railway  Co.,  21 
Wis.  39,  the  rule  of  absolute  liability  was  distinctly  af- 
firmed. The  refusal  of  the  circuit  judge  to  instruct  the 
jury  that  contributory  negligence  of  the  plaintiff  would 
excuse  the  defendant,  was  expressly  upheld.  The  opin- 
ion of  the  chief  justice  on  the  point  is  very  brief ;  hardly 
discussing  the  question;  not  citing  an  authority  in  favor 
of  the  rule ;  appearing  rather  to  take  it  for  granted.  The 
case  appears  to  hold  the  statutory  liability  absolute,  how- 
ever gross  contributory  negligence  might  be.  It  seems 
to  have  been  overlooked  that  the  absolute  liability  of  the 
statute  is  for  damages  occasioned  by  the  failure  to  erect 
and  maintain  fences;  that  is,  occasioned  by  that  only. 
The  word  "occasioned"  was  apparently  used  in  one  sense 
of  "caused;"  and  accurately  used..  Dr.  Johnson's  first 
definition  of  the  verb,  to  occasion,  is,  to  cause  casually; 
his  second,  simply,  to  cause.  Dr.  Webster's  is  not  sub- 
stantially different :  to  give  occasion  to,  to  cause  incident- 
ally, to  cause.  Mr.  Crabb  appears  to  give  the  like  con- 
struction to  the  word:  "what  is  caused  seems  to  follow 
naturally;  what  is  occasioned  follows  incidentally."  Of 


Opinions  of  Chief  Justice  Ryan.  566 

course,  the  want  of  a  fence  cannot,  of  itself,  cause  injury, 
but  it  gives  occasion  to  injury;  causes  it  incidentally. 
The  want  of  a  sufficient  fence  gives  occasion  to  an  animal 
to  go  upon  the  track,  gives  occasion  to  injury  there;  but 
negligence  of  the  owner  may  contribute  to  the  occasion. 
So  it  is,  perhaps,  in  actions  for  negligence  against  munici- 
pal corporations,  in  suffering  their  highways  to  be  defec- 
tive. Defective  highways  cannot,  of  themselves,  cause 
injury,  but  they  give  occasion  of  injury  to  those  passing 
over  them.  And  it  is  difficult  to  perceive  any  distinction, 
in  principle,  in  applying  the  rule  of  contributory  negli- 
gence, to  a  case  where  the  defendant's  negligence  is  the 
direct  cause  of  injury,  and  to  a  case  where  the  defendant's 
negligence  only  gives  occasion  to  injury.  The  profound 
deference  which  all  owe  to  his  great  learning  and  ability 
as  a  jurist,  suggests  the  belief  that  the  chief  justice's  opin- 
ion in  Brown  v.  Railway  Co.,  and  the  judgment  in  the 
case,  did  not  proceed  upon  sufficient  consideration. 

It  may  be  remarked  in  passing,  that  the  chief  justice's 
comments  on  Hance  v.  Railroad  Co.,  26  N".  Y.  428,  ap- 
pear to  be  not  altogether  consistent  with  the  judgment 
in  Dunnigan  v.  Railway  Co.,  18  Wis.  28.  The  latter 
case,  by  the  way,  clearly  recognizes  the  application  of  the 
rule  of  contributory  negligence  to  an  action  for  failure  to 
maintain  cattle  guards,  fairly  implying  its  application  to 
actions  for  any  failure  under  the  statute. 

The  rule  is  reasserted  at  the  next  term  in  Sika  v.  Rail- 
way Co.,  21  Wis.  370 ;  but  it  is  asserted  only,  not  consid- 
ered. This  case  is  noticeable  only  for  the  chief  justice's 
distinct  recognition  that  the  action  for  injuries  occasioned 
by  failure  to  fence,  is  an  action  for  negligence ;  which,  in 
principle,  appears  to  give  away  the  rule  of  absolute  lia- 
bility, independent  of  contributory  negligence. 


567  Curry  v.  Chicago,  N.  W.  Ry.  Co. 

There  is  a  sentence,  purely  obiter,  in  Mr.  Justice  Cole's 
opinion  in  Schmidt  v.  Railway  Co.,  23  Wis.  186,  sug- 
gesting that,  in  case  of  injury  to  a  domestic  animal,  "by 
the  failure  to  erect  the  fence,  the  liability  of  the  company 
would  be  clear  and  absolute,  regardless  of  the  question 
whether  the  owner  had  been  guilty  of  negligence."  This 
is  a  very  broad  reassertion  of  the  rule  of  Brown  v.  Rail- 
way Co.,  but  the  rule  was  not  involved  in  the  case.  The 
action  was  for  injury  to  an  infant,  who  strayed  upon  the 
road  from  adjoining  premises  unfenced.  The  case  turned 
upon  the  contributory  negligence  of  the  child ;  and  it  was 
held  that  it  was  not  guilty  of  such  negligence  as  would  de- 
feat the  action.  And  in  commenting  on  the  question,  the 
humanity  of  the  learned  judge  suggests  the  comparison 
between  liability  for  injury  to  human  beings  and  liability 
for  injury  to  brute  creatures.  The  rule  in  Brown  v.  Rail- 
way Co.  was  evidently  more  in  the  mind  of  the  judge,  than 
the  statute  on  which  the  rule  ought  to  rest.  It  was  rather 
an  allusion  than  a  dictum;  wholly  irrelevant  to  the  case, 
and  therefore  of  no  weight. 

In  Laude  v.  Railway  Co.,  33  Wis.  640,  the  liability  of 
the  railroad  company  turned  upon  its  having  permitted  a 
gate  in  the  fence  to  remain  open  for  a  long  tima  That 
was  of  course  equivalent  to  a  defective  fence,  to  want  of 
fence  pro  tanto.  It  is  said  in  the  opinion  in  that  case, 
that  the  court  below  was  right  in  assuming  that  there  was 
no  evidence  of  contributory  negligence  to  go  to  the  jury. 
This  is  a  singular  mistake.  It  is  said  indeed  of  particular 
circumstances  which  might  imply  the  plaintiff's  negli- 
gence. But  no  particular  instruction  was  asked  in  refer- 
ence to  those  circumstances.  And  the  charge  of  the  court 
below  expressly  submitted  to  the  jury  the  questions  of  the 
defendant's  negligence  and  of  the  plaintiff's  contributory 


Opinions  of  Chief  Justice  Ryan.  568 

negligence;  expressly  instructed  the  jury,  in  terms  broad 
enough  to  include  any  negligence  of  the  plaintiff,  that  his 
contributory   negligence   would   defeat   the    action.     The 
charge  appears  to  have  followed  closely  the  language  of 
the  opinion  in  Antisdel  v.  Railway  Co.,  evidently  fresh 
in  the  mind  of  the  learned  counsel  who  drew  the  instruc- 
tions, probably  before  the  learned  circuit  judge  when  he 
gave  them.     The  charge  declares  the  liability  for  not  fenc- 
ing to  be  absolute,  where  there  is  no  contributory  negli- 
gence; holds  railroad  companies  to  a  high  degree  of  dili- 
gence in  maintaining  their  fences ;  and  adopts  Mr.  Justice 
Paine's  precise  words  in  stating  that  the   diligence  re- 
quired of  them  is  a  qualification  of  the  absolute  liability 
in  terms  of  the  statute.     There  is  indeed  one  sentence  in 
the  charge  which  appears  to  take  the  liability  as  absolute. 
But  this  is  to  be  read  in  the  light  of  the  whole  charge, 
which  could  leave  the  jury  in  no  doubt  that  contributory 
negligence  would  defeat  the  action,  and  that  the  question 
was   submitted  to  them.     The   charge  was   discussed   at 
some  length,  and  approved  by  this  court.     The  chief  jus- 
tice discusses  the  negligence  of  the  defendant  and  the  con- 
tributory negligence  imputed  to  the  plaintiff,  and  upholds 
the  judgment  on  both  questions;  apparently  ignoring  the 
rule  of  absolute  liability,  established  some  six  or  seven 
years  before  in  Brown  v.  Railway  Co.,  and  Sika  v.  Rail- 
way Co.     There  is,  indeed,  one  remark,  not  very  precisely 
expressed,  approving  the  isolated  sentence  of  the  charge 
already  noticed,  which  has  the  look  of  favoring  the  rule  of 
absolute  liability.     But  the  comment  on  this  sentence  in 
the  charge,  like  the  sentence  itself,  appears  to  be  qualified 
by  the  quotation  of  the  general  charge  submitting  the 
question  of  contributory  negligence  to  the  jury.     It  is  not 
to  be  overlooked  that  Antisdel  v.  Railway  Co.  was  decided 


569  Curry  v.  Chicago,  N.  W.  Ry.  Co. 

several  years  after  Brown  v:  Railway  Co.  and  Sika  v. 
Railway  Co.  And  Laude  v.  Railway  Co.  may  bear  the 
construction  of  having  regarded  the  cases  in  21  Wis.,  af- 
firming the  doctrine  of  absolute  liability  with  or  without 
contributory  negligence,  as  virtually  overruled  by  the  doc- 
trine of  the  case  in  26  Wis.  If  this  view  were  not  then 
in  the  mind  of  the  court,  all  those  cases  seem  to  have  been 
overlooked;  and  Laude  v.  Railway  Co.,  as  well  as  Antis- 
del  v.  Railway  Co.,  appear  to  indicate  an  unconscious  re- 
turn to  sounder  views  of  the  statutory  liability  for  not 
erecting  or  maintaining  railroad  fences. 

This  doubtful  state  of  the  law  was  certainly  unsatisfac- 
tory, as  appears  to  have  been  first  perceived  in  Pitzner  v. 
Shinnick,  39  Wis.  129.  That  case  involved  negligence  in 
leaving  open  a  gate  in  a  railroad  fence,  and  the  question  of 
absolute  or  qualified  liability  for  it.  The  court  held  the 
liability  to  be  qualified,  and  that  contributory  negligence 
would  be  a  defense.  McCall  v.  Chamberlain,  Antisdel  v. 
Railway  Co.,  and  Laude  v.  Railway  Co.,  are  reviewed  to 
some  extent  in  the  opinion.  The  rule  of  absolute  liability 
is  criticised  with  some  emphasis.  Its  inconsistency  with 
the  rule  of  qualified  liability  only,  under  statutes  equally 
peremptory,  limiting  railroad  speed  in  cities  and  villages, 
and  prescribing  the  liability  of  towns  for  highways,  is 
pointed  out.  The  rule  of  absolute  liability  for  not  main- 
taining fences  is  expressly  overruled.  The  rule  of  abso- 
lute liability  for  not  fencing  is  neither  affirmed  nor  over- 
ruled, as  not  being  in  the  case ;  but  a  strong  intimation  is 
given  that  it  could  not  be  upheld. 

Then  come  the  cases  of  Jones  v.  Railroad  Co.,  42  Wis. 
306,  and  Lawrence  v.  Railway  Co.,  id.  322,  considered 
and  decided  together.  The  former  of  these  cases  turns 
upon  a  similar  question  to  that  in  Pitzner  v.  Shinnick, 


Opinions  of  Chief  Justice  Ryan.  570 

and  affirms  that  case.  The  latter  also  involved,  to  some 
extent,  liability  for  not  maintaining  fences,  and  the  ques- 
tion whether  contributory  negligence  would  defeat  an  ac- 
tion for  failure  to  maintain  them.  The  court  held  that  it 
would;  and  used  this  language  on  the  general  question: 

"It  must  be  confessed  that  there  is  some  discrepancy 
in  the  cases  in  this  court,  construing  and  enforcing  the 
liability  of  railroad  companies  upon  failure  of  duties  im- 
posed by  statute.  In  the  case  of  Jones  v.  S.  &  F.  R  R. 
Co.,  considered  and  decided  at  the  same  time  as  this,  not- 
withstanding some  things  said  or  ruled  in  McCall  v.. 
Chamberlain,  13  Wis.  637,  Brown  v.  M.  &  P.  Railway 
Co.,  21  id.  39,  Laude  v.  C.  &  K".  W.  Railway  Co.,  33  id,. 
640,  and  perhaps  other  cases,  we  hold  that,  while  we  are 
not  now  prepared  to  say  whether  or  not  contributory  neg- 
ligence would  be  a  defense  to  an  action  for  injury  arising 
from  the  failure  of  a  railroad  company  to  construct  a 
fence  as  required  by  the  statute,  contributory  negligence 
of  the  plaintiff  may  defeat  an  action  for  injury  arising 
from  failure  of  a  railroad  company  to  maintain  in  repair 
such  fence,  once  built.  The  principles  on  which  numer- 
ous cases  in  this  court  rest,  admitting  contributory  negli- 
gence as  a  defense  in  actions  against  railroad  companies,, 
for  injuries  arising  from  unlawful  speed  of  trains  within 
corporate  limits,  appear  certainly  to  sanction  the  applica- 
tion of  the  same  rule  to  the  latter,  if  not  to  the  former 
class  of  cases,  under  the  statute  requiring  railroads  to  be 
fenced.  The  question  will  be  fully  considered  in  Jones 
v.  S.  &  F.  Railroad  Co.,  and  need  not  be  further  discussed 
here." 

These  are  the  cases  on  the  subject.  There  may  possibly 
be  others  bearing  directly  on  the  question,  though  it  is  be- 
lieved not.  If  there  are  not,  this  review  seems  to  sug- 
gest a  conjecture  that  the  court  rather  happened  upon  the* 


571  Curry  v.  Chicago,  N.  W.  Ry.  Co, 

rule  of  absolute  liability,  than  adopted  it  upon  considera- 
tion. There  does  not  appear  to  be  anything  in  the  pre- 
vious cases  in  the  court  to  support  its  summary  adoption 
in  Brown  v.  Railway  Co.  It  appears  to  have  been  fol- 
lowed only  in  Sika  v.  Railway  Co.  And  the  doctrine  ap- 
pears to  be  afterwards  discredited,  perhaps  forgotten,  in 
Antisdel  v.  Railway  Co.,  if  not  in  Laude  v.  Railway  Co. 
The  last  three  cases,  Pitzner  v.  Shinnick,  Jones  v.  Rail- 
road Co.  and  Lawrence  v.  Railway  Co.,  expressly  over- 
turn one-half  of  the  rule,  the  half  of  it  which  was  directly 
in  question  in  Brown  v.  Railway  Co.  and  Sika  v.  Railway 
Co. 

Doubtless  the  statute  might  have  prescribed  a  rule  of 
absolute  liability  in  the  way  of  penalty.  But  the  wisdom 
of  such  a  rule  would  be  more  than  doubtful.  Be  that  as 
it  may,  it  is  the  duty  of  the  court  to  interpret  the  statute 
as  it  is  written.  And  here  it  may  be  proper  to  remark 
that  the  statute  was  not  taken  from  !N"ew  York,  and  is  es- 
sentially different  from  the  statute  there,  to  which  con- 
struction is  given  in  Corwin  v.  Railroad  Co.,  13  N.  Y.  42y 
and  other  cases.  The  statute  there  provides  that  until  a 
railroad  company  shall  have  built  its  fences,  it  shall  be 
liable  for  all  damages  to  animals  on  the  track;  not  for 
damages  occasioned  by  the  failure  to  fence.  The  essen- 
tial difference  between  that  statute  and  the  statute  here, 
is  too  obvious  for  discussion.  It  is  not  for  this  court  to 
say  whether  the  courts  of  that  state,  or  of  other  states  hav- 
ing essentially  different  statutes,  have  given  proper  con- 
struction to  them.  But  it  is  the  duty  of  this  court  to  give 
to  the  statute  of  this  state  a  just  and  reasonable  construc- 
tion upon  its  own  letter  and  spirit.  It  has  often  been 
said  in  this  court,  and  it  is  quite  apparent,  that  the  statute 
here  was  designed  to  protect  trains  on  railroads  at  least 
as  much  as  domestic  animals  straying  upon  them.  Hu- 


Opinions  of  Chief  Justice  Ryan.  572 

man  life  is  somewhat  more  regarded  than  brute  life.  Cat- 
tle are  part  of  the  wealth  of  the  state ;  but  persons  on  rail- 
road trains  are  part  of  the  state  itself.  The  major  was 
quite  as  much  within  legislative  attention  as  the  minor. 
The  statute  was  not  intended  or  framed  to  relieve  adjoin- 
ing owners  from  diligence  in  the  care  of  their  domestic 
animals,  at  risk  of  danger  to  railroad  trains ;  or  to  license 
negligence  tp  establish  cattle  markets  on  railroads.  The 
essential  danger  of  railroads  requires  diligence  on  both 
sides;  a  high  degree  of  diligence  in  the  management  of 
the  road,  and  at  least  ordinary  diligence  on  the  part  of  ad- 
joining owners.  The  rule  of  absolute  liability  appears 
to  be  as  unwise  in  policy  as  unsound  in  legal  construction. 

The  cases  of  Pitzner  v.  Shinnick,  Jones  v.  Railway  Co., 
and  Lawrence  v.  Railway  Co.,  overturning  one-half  of  the 
rule  of  absolute  liability,  virtually  disaffirmed  the  whole. 
They  probably  prepared  the  profession  for  the  entire  dis- 
affirmance  of  the  rule.  They  seem  to  have  prepared  so 
intelligent  a  jurist  as  the  learned  judge  before  whom  this 
cause  was  tried.  His  charge  disregarded'  the  authority 
of  Brown  v.  Railway  Co. ;  instructing  the  jury  that  con- 
tributory negligence  would  defeat  the  action.  It  is  un- 
necessary to  repeat  here  what  was  said  on  the  subject  in 
those  cases ;  showing  the  unsoundness  of  the  rule  in  prin- 
ciple, and  its  inconsistency  with  the  uniform  rule  in  other 
actions  for  negligence,  founded  upon  statutes  quite  as 
peremptory  and  absolute  in  terms. 

The  rule  can  no  longer  be  upheld.  The  rule  of  this 
court  must  be  taken  as  sustaining  the  defense  of  contrib- 
utory negligence  to  actions  against  railroad  companies, 
for  injuries  occasioned  by  failure  either  to  erect  or  to 
maintain  fences  on  the  line  of  their  roads,  as  in  other  ac- 
tions for  negligence. 

III.  Says  Mr.  Justice  Paine,  in  McCall  v.  Chamber- 


573  Curry  v.  Chicago,  N.  W.  Ry.  Co. 

lain,  supra:  "The  only  question  upon  which  it  would 
seem  there  could  be  any  room  for  doubt  is,  whether  the 
statute  requiring  the  company  to  fence  was  intended 
merely  to  regulate  the  division  fences  between  the  com- 
pany and  the  adjoining  landowners,  for  the  convenience 
of  the  latter  only,  leaving  the  liability  of  the  company, 
with  respect  to  all  others,  as  it  would  have  been  at  the 
common  law;  or  whether  it  was  designed  for  the  protec- 
tion of  the  public  generally,  whose  animals  were  liable  to 
get  upon  the  track.  This  question  is  suggested  in  the 
case  in  3  Kernan,  and  the  court  came  to  the  conclusion 
that  the  latter  was  the  object  of  the  statute.  That  con- 
clusion seems  to  us  more  especially  true  in  this  state,  many 
parts  of  which  are  thinly  settled,  and  where  it  is  almost 
the  invariable  custom  for  the  settlers  to  allow  their  ani- 
mals to  run  at  .large,  fencing  only  their  plowed  lands. 
The  rule  of  the  common  law  requiring  every  one  to  fence 
in  his  own  animals,  under  pain  of  their  being  considered 
trespassers  if  they  entered  even  on  the  uninclosed  lands 
of  another,  if  strictly  enforced,  is  often  productive  of 
hardships  in  a  new  country  like  ours.  For  this  reason 
it  has  never  been  adopted  in  some  of  the  states.  Murray 
v.  R.  R.  Co.,  10  Rich.  Law,  227;  K  &  C.  R.  R.  Co.  v. 
Peacock,  25  Ala.  229.  It  has  been  held  to  be  the  law  in 
this  state,  though  it  is  generally  disregarded  by  common 
consent  in  the  newly  settled  part  of  the  state.  And  this 
fact,  which  was  undoubtedly  well  known  to  the  legisla- 
ture, as  well  as  the  frequent  hardships  resulting  from  the 
strict  enforcement  of  the  common  law  rule,  leads  our  minds 
to  the  conclusion  that  it  was  the  intention  of  the  statute, 
in  requiring  the  railroad  company  to  fence  its  road,  to  re- 
peal the  common  law  rule,  and  to  protect  not  only  the  ad- 
joining landowners,  but  the  public  generally." 

Where  there  is  a  body  of  uninclosed  land,  and  a  custom 


Opinions  of  Chief  Justice  Ryan.  574 

of  turning  cattle  upon  it  to  pasture,  for  a  long  time,  with- 
out objection,  license  might  perhaps  be  implied.  But  that 
question  was  excluded  by  the  court  below,  and  is  not  here. 

But  several  cases  in  this  court  uphold  the  right  to  re- 
cover, in  a  case  otherwise  proper,  under  the  statute,  for 
injuries  to  domestic  animals  coming  upon  a  railroad  from 
land  on  which  they  were  trespassers.  McCall  v.  Cham- 
berlain, Pitzner  v.  Shinnick,  supra.  As  Whiton,  C.  J., 
remarks  in  Pritchard  v.  Eailway  Co.,  7  Wis.  232,  tres- 
passing animals  are  not  outlawed.  And  if,  as  all  the 
cases  in  this  court  appear  to  hold,  the  mere  fact  that  they 
are  trespassers  on  the  railroad  itself,  will  not  defeat  a  re- 
covery, it  is  difficult  to  perceive  why  the  fact  that  they 
had  just  before  been  trespassers  elsewhere  should  have 
that  effect. 

The  mere  fact,  therefore,  if  the  fact  sufficiently  appear 
here,  that  the  respondent's  cow  was  permitted  to  pasture 
on  land  which  he  did  not  own,  would  not  defeat  his  ac- 
tion. The  true  question  was,  whether  the  respondent  was 
guilty  of  contributory  negligence  in  suffering  his  cow  to 
be  at  large  upon  unfenced  land.  The  court  below  sub- 
mitted that  as  a  question  for  the  jury.  The  verdict  is, 
that  it  was  not.  And  the  question  for  this  court  is, 
whether  the  facts  justified  the  court  below  in  treating  the 
contributory  negligence  imputed  to  the  respondent  as  a 
question  of  fact;  or  whether  the  respondent's  act  was  so 
manifestly  and  conclusively  negligent,  the  court  below 
should  have  withheld  the  question  from  the  jury,  and 
found  the  contributory  negligence  as  matter  of  law.  Lang- 
hoff  v.  Railway  Co.,  23  Wis.  43;  Lawrence  v.  Railway 
Co.,  supra. 

In  Lawrence  v.  Railway  Co.  it  was  held  to  be  contrib- 
utory negligence,  in  law,  to  leave  cattle,  in  the  morning, 
at  large  for  the  day,  without  purpose  and  by  mere  inad- 


575  Curry  v.  Chicago,  N.  W.  Ry.  Co. 

vertence,  in  midwinter,  presumably  without  food,  within 
seventy  rods  of  a  railroad,  without  fence  or  obstacle  to 
keep  them  from  it.  The  facts  are  perhaps  not  sufficiently 
stated  in  the  report.  The  cattle  had  been  housed  that 
season,  were  taken  out  that  morning  to  be  watered,  and 
were  not  put  back  in  their  stable,  as  intended,  by  ap- 
parent forgetfulness.  The  inclination  of  the  cattle  to 
wander  in  such  circumstances,  and  the  danger  of  their 
coming  on  the  railroad,  were  strong  and  obvious ;  and  neg- 
ligence in  so  leaving  them  was  patent  and  gross.  But 
perhaps  that  case  went  as  far  as  the  court  would  be  war- 
ranted in  going. 

The  circumstances  here  are  very  different.  The  cow 
appears  to  have  been  left,  presumably  with  other  cattle,  in 
summer,  on  grass-land,  some  three-quarters  of  a  mile  from 
the  railroad;  certainly  at  a  comparatively  safe  distance, 
and  with  no  apparent  temptation  to  stray  so  far,  or  to 
leave  its  pasture  for  the  uninviting  barrenness  of  a  rail- 
road, without  even  garbage  to  prey  upon. 

The  danger  to  the  animal  in  the  former  case  was  close 
and  imminent;  in  the  latter,  remote  and  not  apparently 
probable.  An  owner  of  ordinary  prudence  would  not  in- 
cur the  risk  of  injury  in  the  one  case ;  might  well  incur  it 
in  the  other.  Negligence  in  the  one  case  is  not  open  to  de- 
bate or  doubt;  in  the  other,  it  is  manifestly  open  to  both. 
Where  negligence  does  not  admit  of  doubt  or  debate,  it  is 
matter  of  law  for  the  court.  Where  negligence  is  a  ques- 
tion for  doubt  or  debate,  it  is  matter  of  fact  for  the  jury. 
Negligence  "may,  in  general,  be  said  to  be  a  conclusion 
of  fact  to  be  drawn  by  the  jury,  under  proper  instructions 
from  the  court.  It  is  always  so  where  the  facts,  or  rather 
the  conclusion,  is  fairly  debatable  or  rests  in  doubt." 
Langhoff  v.  Railway  Co.,  19  Wis.  489. 

The  question  is  generally  a  mixed  one  of  law  and  fact. 


Opinions  of  Chief  Justice  Ryan.  576 

There  may  or  there  may  not  be  a  question  of  fact  for  the 
jury.  Each  case  must  be  determined  by  its  own  circum- 
stances. Courts  cannot  establish  a  general  rule,  deter- 
mining what  is  or  is  not  negligence  under  all  circum- 
stances. And  when  circumstances  leave  it  in  reasonable 
doubt,  courts  cannot  take  the  question  from  the  jury.  In 
such  a  case  as  this,  a  jury  is  a  far  better  judge  of  the 
question  than  a  court.  The  question  was  plainly  for  the 
jury,  and  was  properly  and  fairly  submitted  to  it.  And 
the  verdict  is  conclusive  of  the  fact. 

By  the  Court. — The  judgment  of  the  court  below  is  af- 
firmed. 

NOTE. 

[Each  case  in  the  note  after  which  is  placed  the  figure 
(1)  relates  to  the  subject  discussed  in  the  foregoing  opin- 
ion numbered  I;  those  numbered  (2)  relate  to  the  subject 
in  the  opinion  numbered  II;  etc.] 

Curry  v.  The  Railway,  supra,  has  been  cited  with  ap- 
proval in  the  Wisconsin  Supreme  Court,  as  follows :  Mur- 
phy v.  C.  &  N.  W.  Ry.  Co.,2  45  Wis.  234,  242,  243; 
McCandless  v.  C.  &  N.  W.  Ry.  Co.,2  45.  Wis.  370,  371; 
Lockwood  v.  C.  &  K  W.  Ry.  Co.,2  55  Wis.  66;  Brem- 
mer  v.  Green  Bay,  etc.,  Ry.  Co.,2  61  Wis.  118 ;  Quacken- 
bush  v.  W.  &  M.  Ry.  Co.,2  62  Wis.  416,  417 ;  Hemming- 
way  v.  C.,  M.  &  St.  P.  Ry.  Co.,3  72  Wis.  49 ;  Heller  v. 
Abbott,3  79  Wis.  413 ;  Holum  v.  C.,  M.  &  St.  P.  Ry.  Co.,2 
80  Wis.  303 ;  Thompson  v.  Edward  P.  Allis  Co.,2  89  Wis. 
530 ;  Oeflein  v.  Zautcke,2  92  Wis.  178 ;  McCann  v.  C.,  St. 
P.,  M.  &  O.  Ry.  Co.,2  96  Wis.  666;  Schneider  v.  C.,  M. 
&  St.  P.  Ry.  Co.,2  99  Wis.  387 ;  Helmke  v.  Thilmany,2 
107  Wis.  322 ;  Ray  v.  Stucky,2  113  Wis.  79 ;  Herrell  v. 
C.,  M.  &  St.  P.  Ry.  Co.,2  114  Wis.  609 ;  Perrault  v.  M. 
etc.,  Ry.  Co.,2  117  Wis.  530;  Fisher  v.  W.  U.  Tel.  Co.,2 
119  Wis.  150;  Atkinson  v.  C.  &  K  W.  Ry.  Co.,2  119 
Wis.  180;  Morgan  v.  Pleshek,3  120  Wis.  310. 

It  has  been  cited  with  approval  outside  of  the  Supreme 
Court  of  Wisconsin,  as  follows:  Cent.  Branch  Rid.  Co, 


577  Note  to  Curry  v.  Chicago,  N.  W.  Ry.  Co. 

v.  Lea,2  20  Kan.  365;  A.,  T.  &  S.  F.  Ry.  Co.  v.  Riggs,3 
31  Kan.  626;  Mo.  P.  Ry.  Co.  v.  Roads,3  33  Kan.  642; 
Patee  v.  Adams,2  37  Kan.  140 ;  Walker  v.  V.  S.  &  P.  Ry. 
Co.,3  41  La.  Ann.  795,  806,  7  L.  R.  A.  117;  Flemming 
v.  St.  P.  &  D.  Ry.  Co.,2  27  Minn.  115 ;  Johnson  v.  C., 
M.  &  St.  P.  Ry.  Co.,2' 3  29  Minn.  428,  429 ;  Watier  v.  C., 
St.  P.  M.  &  O.  Ry.  Co.,3  31  Minn.  94. 

Curry  v.  The  Railway,  supra,  has  been  cited  in  notes 
to  the  following  cases  reported  in  L.  R.  A.,  Am.  Dec.,  Am. 
St.  Rep.,  and  Eng.  &  Am.  Ry.  Cases,  in  which  also  the 
authorities  are  collected: 

Lawyers'  Reports  Annotated:  Dennis  v.  L.  N.  A.  &  C. 
By.  Co.  (116  Ind.  42),  1  L.  R  A.  448,  449;  Shellen- 
berger  v.  Ransom  (41  E"eb.  631),  25  L.  R.  A.  572. 

American  Decisions:  Tonowanda  Ry.  Co.  v.  Munger 
(5  Denio,  255),  49  Am.  Dec.  269;  Freer  v.  Cameron 
(4  Richardson's  Law,  228),  55  Am.  Dec.  674;  Murray  v* 
S.  C.  Ry.  Co.  (10  Richardson's  Law,  211),  70  Am.  Dec, 
222;  Chic.,  etc.,  Ry.  Co.  v.  Goss  (17  Wis.  428),  84  Am. 
Dec.  758;  Dunnigan  v.  Chic,  etc.,  Ry.  Co.  (18  Wis.  28), 
86  Am.  Dec.  743;  Schmitt  v.  Mil.,  etc.,  Ry.  Co.  (23  Wis. 
186),  99  Am.  Dec.  164. 

American  State  Reports:  State  v.  Goodwill  (33  W.  Va. 
179),  25  Am.  St.  Rep.  884. 

American  &  English  Railway  Cases:  Johnson  v.   C. 

6  K  W.  Ry.  Co.  (49  Wis.  529),  1  Am.  &  Eng.  Ry.  Cas. 
159;  Brentner  v.  C.,  M.  &  St.  P.  Ry.  Co.  (58  la.  625), 

7  Am.  &  Eng.  Ry.  Cas.  579 ;  W.  Md.  Ry.  Co.  v.  Carter  (59 
Md.  306),  13  Am.  &  Eng.  Ry.  Cas.  578;  Alabama  Gr. 
So.  Ry.  Co.  v.  Jones  (71  Ala.  487),  15  Am.  &  Eng.  Ry. 
Cas.  557;  H.  &  St.  J.  R.  Co.  v.  Rutledge  (78  Mo.  286), 
19  Am.  &  Eng.  Ry.  Cas.  674;  Farmer  v.  W.  &  W.  Ry. 
Co.  (88  K  C.  564),  20  Am.  &  Eng.  Ry.  Cas.  486;  Dan- 
iels v.  Grand  Trunk  Ry.  Co.  (11  Ont.  App.  471),  22  Am. 
&  Eng.  Ry.  Cas.   614;  Atchison,  etc.,  Ry.  Co.  v.  Gab- 
bert  (34  Kan.  132),  22  Am.  &  Eng.  Ry.  Cas.  625,  628; 
Indiana,  etc.,  Ry.  Co.  v.  Koons  (105  Ind.  507),  24  Am.  & 
Eng.  Ry.  Cas.  380;  Grant  v.  Mich.  Cent.  Ry.  Co.   (83 
Mich.  564),  48  Am.  &  Eng.  Ry.  Cas.  392. 

37 


INDEX. 


A. 

ABLEMAN  V.  BOOTH— 
case  of,  69. 
prefatory  note,  69-71. 
facts  in,  69-71,  96-101. 
proposition  of  law  decided,  69. 
opinion  in,  69. 
authorities  collected,  96-101. 

ABODE  (see  DWELLING  HOUSE). 

ACCOMPLICE— 

with  promise  of  pardon,  519,  520. 

when  testimony  admissible,  520. 

discretion  of  court  to  promise  pardon  to,  520,  521,  523. 

indicted  for  more  than  one  crime,  will  not  be  pardoned,  521. 

courts  cautious  in  exercising  power  to  pardon,  521. 

no  authority  in  public  prosecutor  to  make  agreement  with, 

521,  524,  525. 
duty  of  counsel  of,  522. 
court  might  have  understanding  with,  on  several  indictments, 

524,  525. 
court  only  sanctions  understanding  on  fullest  knowledge,  525. 

ACT— 

constructive  repeal,  319,  320. 

not  repealed  by  subsequent  act  unless  inconsistent,  320. 

of  1860  of  Wisconsin,  declaratory  of  existing  rights,  357. 

authorizing  mortgage  of  railroad  acts  as  grant,  372. 

with  exception  of  corporate  charter  does  not  expire  by  its  own 

limitation,  377,  378. 

remedial,  when  may  be  retrospective,  136. 
remedying  defects  in  corporate  organization,  139. 
words  of  to  be  taken  in  ordinary  meaning,  15. 
words  of  to  be  construed  in  sense  in  which  used  by  legisla- 
ture, 15. 
of  parliament,  construction  of  words  in,  15. 


Index.  580 

ACT — cont 

in  construing,  courts  deem  legislature  meant  what  is  just,  22. 

Incorporating  towns,  powers  of  territory,  37-39. 

construction  of  Wisconsin  Homestead  Act,  when  not  liberal,  23. 

compounding  offenses,  532,  533. 

chap.  273,  Laws  of  1874,  319. 

chap.  273,  violating  contract  with  creditors,  347,  348. 

chap.  273,  lessens  railroad  toll  rates,  347,  348. 

chap.  273,  acts  only  on  the  franchise,  348. 

chap.  273,  opinions  of  railroad  experts  on,  352. 

chap.  273,  uniformity  of,  353. 

chap.  273,  provision  regulating  tolls,  353 

chap.  273,  acceptance  by  railroads,  354. 

chap.  273,  railroads  must  accept  or  suspend,  354. 

chap.  273,  civil  remedy  under,  320,  321. 

chap.  130  of  1868,  to  insure  equal  assessment,  492,  493. 

chap.  166  of  1873,  varies  oath  of  assessor,  493. 

chap.  102  of  1849,  on  homesteads,  11. 

chap.  113  of  1858,  concerning  foreclosures,  54,  55. 

chap.  34  of  1849,  cited  in  chap.  113,  of  1858,  54. 

chap.  248  of  1874,  does  not  repeal  sees.  30  and  31  of  1872,  558, 
559. 

chap.  93,  local  laws  of  1853,  incorporating  city  of  Janesville,  36. 

chap.  93,  classifying  land  in  village  without  regard  to  uniform- 
ity, 37. 

chap.  286,  local  laws  of  1854,  same  purpose  as  chap.  93  of 
1853,  37. 

chap.  52  of  1870,  right  of  removing  causes  from  state  to  fed- 
eral court  waived  by  foreign  corporation,  425,  431,  435 

of  1875  regulating  railway  fences,  559,  560. 

is  for  protection  of  public  generally,  573. 

ACTIONS  (see  RAILBOADS) — 

for  personal  injuries,  principles  applicable  to,  219. 

for  negligence,  go  upon  defendant's  negligence  only,  564. 

for  injury  to  infant  straying  on  railroad  from  unfenced  land, 
567. 

for  failure  to  fence  defeated  by  contributory  negligence,  567, 
568. 

for  failure  to  maintain  fences  defeated  by  contributory  neg- 
ligence, 569-572. 

(See  CONTRIBUTOEY  NEGLIGENCE;  LIABILITY;  RAILBOADS.) 

AFFIDAVIT— 

of  assessor,  evidence  of  valid  assessment,  494. 


581  .         Index. 

AGENCY— 

of  driver  of  vehicle,  547,  548,  550. 

driver  as  agent  of  volunteer,  550,  551. 

applies  in  joint  expedition,  550. 

foundation  of  doctrine  as  regards  imputation  of  negligence, 
555,  556. 

distinction  between  public  and  private  conveyances,  554. 

(See  CONTBIBUTOBY  NEGLIGENCE;  RESPONDEAT  SUPEBIOB.) 
AGENT  (see  AGENCY;  RESPONDEAT  SUPEBIOB;  DAMAGES). 
AGREEMENT— 

tending  to  obstruct  justice  is  void,  527. 

between  public  prosecutor  and  accomplice  is  unlawful,  521, 
524-526. 

(See  ACCOMPLICE.) 
AMENDMENT— 

of  1871,  aimed  at  special  legislation,  324. 

of  1871,  prospective,  326. 

of  1871,  does  not  impair  reserve  power,  326. 

review  of  eleventh  to  constitution,  440-457. 

(See  CONSTITUTION.) 
ASSESSMENT— 

definition  of,  487. 

is  an  essential  part  of  taxation,  494. 

is  jurisdictional,  487. 

constitution  and  statutes  prescribe  uniformity  in,  487. 

cannot  be  dispensed  with,  487. 

manner  of,  at  discretion  of  legislature,  487. 

validity  of  tax  depends  on,  487,  491,  492,  499. 

errors  in,  in  good  faith,  488. 

duties  of  officers  in  making  defined  by  statute,  488. 

tax  avoided  by  valid  objection  to,  489. 

technical  errors  in,  distinguished  from  ground  work,  490. 

how  affected  by  mistake  in  law  by  supervisors,  490. 

when  invalid,  492. 

is  invalid  without  affidavit  of  assessor,  495,  496. 

roll,  prima  facie  valid  or  void  on  return,  496. 

equitable  jurisdiction  of  circuit  court  to  review,  497,  498. 

ASSESSOR— 

official  integrity,  493,  494. 

oath  of,  493. 

affidavit  of  is  evidence  of  what,  494. 

affidavit  of  cannot  be  supplied  by  evidence  aliunde,  496. 

opportunity  for  fraud,  494. 


Index.  582 

ATTORNEY  GENERAL— 

when  has  right  to  elect  forum,  285. 

as  "parens  patriae,"  297. 

right  to  relief  in  equity  on  behalf  of  public,  301,  310. 

unverified  information  equivalent  to  bill  in  chancery,  360. 

(See  INFORMATION.) 

ATTORNEY  GENERAL  v.  THE  RAILROADS— 
case  of,  259. 

prefatory  note,  259,  260. 
facts  in,  259,  260. 

propositions  of  law  decided,  260-271. 
opinion  in,  271. 
cases  citing,  379-381. 
authorities  collected,  379-382. 

B. 

BAILEES— 

actions  against  for  injuring  horses  hired  on  Sunday,  218. 

BRIDGE— 

rottenness  not  affected  by  time  a  weight  is  placed  thereon, 

225. 
(See  CONTRIBUTORY  NEGLIGENCE.) 

BUILDING— 

divided  by  horizontal  lines  for  homestead  purposes,  26,  29. 

horizontal  and  perpendicular  distinguished,  3D. 

part  used  for  business  immaterial,  27,  28. 

divided  by  perpendicular  lines  for  homestead  purposes,  30. 

(See  DWELLING  HOUSE;  HOMESTEAD.) 

BURDEN  OF  PROOF  (see  PROOF). 

C. 

CARRIERS  (see  RAILROADS). 

CATTLE  (see  CONTRIBUTORY  NEGLIGENCE;  LIABILITY;  RAILROADS). 

CATTLE  CHUTES  (see  STRUCTURES). 

CAUSA  PROXIMA,  ETC.  (see  MAXIMS;  PROXIMATE  CAUSE). 

CAUSE— 

as  distinguished  from  condition,  223. 

CERTIORARI  (see  WBIT). 


CHANCERY  COURT  OF  ENGLAND— 
jurisdiction,  286,  292,  293. 

independent  of  authority  by  statute,  288. 

Bryce  on,  288,  289. 

three  grounds  of,  to  control  corporations,  289. 

two  general  grounds  of,  291. 

to  restrain  certain  corporate  violations,  290. 

CHARGE — 

of  judge,  to  be  taken  as  a  whole,  510. 
when  not  full  enough,  511. 

CHARTER— 

alteration  of,  legislature  sole  judge,  345. 
not  considered  a  mere  statute  in  relation  to  Dartmouth  Col- 
lege Case,  360. 

is  a  mere  proposal  until  accepted,  370. 
expiring  by  its  own  limitation,  377. 
alteration  of  special  charter  by  general  laws,  325. 
(See  COXTBACT;  RATLBOADS.) 

CIRCUIT  COURTS— 

how  anologous  to  English  Court  of  Chancery,  283. 
equitable  jurisdiction  to  review  tax  assessment,  497. 
of  U.  S.  when  may  enjoin  a  state  officer,  452. 
of  U.  S.  when  it  has  jurisdiction  of  a  state,  452. 
(See  ASSESSMENT;  JUBISDICTION.) 

CITY— 

authority  to  build  a  harbor,  139,  141,  142. 

authority  to  make  laws  for  internal  improvement,  141. 

has  power  to  contract  subservient  to  general  restrictions,  142. 

not  bound  to  carry  surface  water  off  when  grading,  208. 

must  have  notice  to  be  held  for  condition  of  highway,  542. 

(See  MUNICIPALITY.) 

CIVIL  REMEDY— 

against  railroads  for  injuries  under  chap.  273  of  1874  of  Wis- 
consin, 320,  321. 
(See  ACT.) 

COMMUNISM— 

a  "foreign  abomination,"  349. 

COMMON  CARRIER— 

to  what  extent  agent  for  passengers,  548. 
passengers  must  submit  to  regulations  of,  551,  552. 
(See  RAILBOADS.) 


Index.  684 

COMMON  LAW— 

writs,  276,  277. 

rule  as  to  surface  water,  209. 

quaere  as  to  modification  in  hilly  region  of  surface  water  un- 
der rule  of,  209. 

rule  as  to  fencing  cattle,  overruled  In  Wisconsin,  is  productive 
of  hardship  in  new  country,  569-572. 

(See  ACTIONS;  LIABILITY;  RAILBOADS;  SUEFACE  WATEB; 
WBITS.) 

CONCLUSIVE  PRESUMPTIONS— 
relate  to  law  rather  than  fact,  546. 

CONDITION— 

distinguished  from  cause,  223. 

constituting  contributory  negligence  analogous  to  conditions 

in  life  policies,  226. 
(See  CONTBIBUTOBY  NEGLIGENCE.) 

CONGRESS— 

power  to  provide  for  appeals  from  state  courts,  73,  74,  78. 
power  to  qualify  jurisdiction  of  Supreme  Court,  84. 
power  over  territorial  legislation,  374. 

CONSEQUENCES— 

natural  and  ordinary,  156. 
(See  PBOXIMATE  CAUSE.) 

CONSTITUTION— 

effect  of  amendment  of  1871  on  section  1,  art.  XI,  325,  326. 

circuit  court  jurisdiction  under,  282,  283. 

of  state  construed  by  state  courts,  342. 

may  adopt  or  repeal  territorial  laws,  they  not  being  contracts, 

377. 

provision  as  to  uniform  taxation  in  Wisconsin,  39,  42,  43. 
in  Illinois  and  Iowa,  327. 
(See  CONTBACT;  JUBISDICTION.) 

CONSTITUTION  OF  THE  UNITED  STATES— 

power  of  supreme  court  to  review  judgments  of  state  courts, 

73,  74,  77. 

recurs  to  fundamental  principles,  76. 
construction  of  judicial  powers  of,  78,  79. 

two  classes  of  cases,  78,  79. 
meaning  of  all  cases  in  law  and  equity,  80. 
powers  expressed  in  general  terms,  85. 


585  Index. 

CONSTITUTION  OF  THE  UNITED  STATES— cont. 
option  of  party  to  sue  in  state  or  federal  court,  94. 
who  has  jurisdiction  when  parties  are  from  different  states, 

235. 

review  of  origin  of  eleventh  amendment,  440-457. 
(See  JURISDICTION.) 

CONSTRUCTIVE  REPEAL— 

of  statute  by  another  on  same  subject,  558. 
uniform  rule  of  governs  in  Wisconsin,  558. 
of  earlier  statute  by  one  revising  it,  558. 
(See  ACT.) 

CONSTRUCTION— 

of  act,  strict  in  one  clause,  liberal  in  another,  23,  24. 
CONTRACT— 

obligation  not  impaired  by  chap.  273  of  1874,  328. 
obligation  clause  construed,  329. 

policy  of  this  clause,  329. 
act  of  legislature  sometimes  a,  330. 

but  not  as  to  a  municipal  corporation,  330. 
charter  is  a,  111. 

dissatisfaction  thereat,  331,  336,  362. 

what  it  comprehends  according  to  Marshall,  C.  J.,  331-333.    • 
what  it  comprehends  according  to  Story,  C.  J.,  333,  334. 
reason  for  adhering  to  rule  that  charter  is  a,  336. 
never  strictly  the  rule  in  Wisconsin,  342. 
alterable  by  the  state  in  Wisconsin,  342. 
relinquishment  of  right  to  tax  by  a  state  is  a,  363. 
of  railroads  with  female  passengers  goes  far,  388. 
void  for  want  of  capacity  in  a  party,  131. 
remedy  by  existing  laws  forms  part  of  obligation  of,  59. 
obligation  may  not  be  impaired  by  altering  remedies,  60. 
obligation  affected  by  limiting  mortgagee's  power  of  sale,  63. 
obligation  impaired  by  placing  minimum  limit  to  time  of  sale, 

63. 

contrary  to  public  policy,  519,  524  et  seq. 
grant  of  land  by  state  is  a,  112. 
for  professional  services  by  a  lawyer,  515. 
CONTRIBUTORY  NEGLIGENCE— 

dry  grass  on  land  next  a  railroad,  148,  149. 

so  held  where  plaintiff  fails  to  cut  stubble,  150. 

person  not  guilty  of  when  using  his  property  in  the  usuai 

manner,  150,  164-166. 
hypothetical  case  of,  by  New  York  court,  151-153. 


Index.  586 

CONTRIBUTORY  NEGLIGENCE— cont. 
reduced  to  an  absurdity,  153. 
of  plaintiff,  defense  to  an  action  under  common  law  and  by 

statute,  156. 

avoided  by  what  degree  of  care  on  plaintiff's  part,  165,  166. 
rule  of  burden  of  proof  in  actions  for  negligence,  544,  545. 
onus  probandi  not  on  defendants,  545. 

is  on  defendant  when  plaintiff  leaves  it  in  doubt,  545,  547. 
proved  by  slight  want  of  ordinary  care,  546. 
of  driver  in  private  vehicle  defeats  master's  right  of  action, 

549. 

violation  of  Sunday  law  as  constituting,  216. 
ground  of  doctrine  of  where  plaintiff  does  unlawful  act,  217. 

must  be  naturally  calculated  to  cause  the  injury,  221. 
on  plaintiff's  part  must  be  cause  of  injury  to  bar  action,  219, 

221,  225,  226. 

violation  of  law  as  constituting,  224. 
analogous  to  condition  in  life  insurance  policy,  must  operate 

as  a  cause,  226. 

in  driving  cattle  over  a  bridge,  question  for  jury,  227,  228. 
of  plaintiff  as  defense  in  action  for  animals  killed  on  rail- 
road track,  561. 

misconception  in  Wisconsin,  561. 
sufficient  in  degree  will  defeat  action,  563. 
as  matter  of  law,  574. 
(See  LIABILITY;  NEGLIGENCE;  RAILEOADS;  SUNDAY  LAW.) 

COPULATIO  VERBORUM,  ETC.  (see  MAXIMS).    • 

CORPORATE  POWERS— 

prohibition  of  by  special  acts,  amendment  of  1871,  324,  325. 

CORPORATE  VIOLATIONS  (see  EQUITY;  COUBT  OF  CHANCEBY). 

CORPORATIONS— 

public,  founded  by  government  for  public  purposes  only,  117. 

growth  and  influence  of  on  law,  293. 

information  in  equity  against  municipal,  308. 

remedy  against,  distinct  from  liability  of,  311. 

servants  of,  317. 

may  lose  privileges  on  change  of  government,  367. 

power  to  amend  charter  (see  CONSTITUTION). 

distinction  between  Quasi-private  and  municipal,  334. 

distinction  between  private  and  municipal,  334. 

can  act  only  through  officers  and  servants,  387,  388. 

de  facto,  372. 

before  growth  of  great  corporations,  335. 


587  Index. 

CORPORATIONS— cont. 

are  "imperia  in  imperils,"  335. 

are  creatures  of  the  state,  342. 

acceptance  of  charter  presumed  beneficial  to,  370. 

legislative  recognition  does  not  cure  irregularity  in  forma- 
tion of,  372. 

Wisconsin  territorial  charter  to  railroads  still  in  force,  357, 
363. 

by  accepting  charter  accept  both  benefits  and  burdens  therof, 
237. 

municipal  and  private  have  same  property  rights,  112. 

charter  of  is  a  contract,  111. 

(See  FOEEIQN  CORPORATIONS;  MUNICIPAL  CORPORATIONS;  RAH> 
BO  ADS.) 

CORRUPTION— 
defined,  522. 

CRAKER  v.  C.  &  N.  W.  RY.— 
case  of,  383. 
prefatory  note,  383. 
facts  in,  383. 

propositions  of  law  decided,  383,  384. 
opinion  in,  384. 
cases  citing,  397-399. 
authorities  collected,  397-400. 

CURRY  v.  C.  &  N.  W.  Ry  — 
case  of,  557. 
prefatory  note,  557. 
facts  in,  557. 

propositions  of  law  decided,  557,  558 
opinion  in,  558. 
cases  citing,  576,  577. 
authorities  collected,  576,  577. 

D. 

DAMAGE— 

not  essential  for  abatement  of  public  nuisance,  304,  305. 
proximate  cause  of,  156. 
(See  PBOXIMATE  CAUSE.) 

DAMAGES— 

when  principal  is  sued  for  misconduct  of  agent,   386,  387,. 

391,  392. 
when  principal  is  privy  to  agent's  act,  393. 


Index.  588 

DAMAGES— cont 

are  compensatory  in  case  of  railroad  to  insure  employment 

of  trustworthy  men,  394. 
elements  of,  395. 
mental  suffering,  396. 

when  exemplary  in  addition  to  actual,  395. 
in  tort  actions,  395. 
when  malice  is  an  element,  396. 
jury  fixes  amount  of,  397. 

where  railroad  intrudes  on  riparian  rights,  480 
in  case  of  servant's  negligence,  182. 
(See  AGENT;  PROXIMATE  CAUSE.) 

DEBTORS— 

under  Wisconsin  homestead  doctrine,  23. 
power  to  make  property  exempt,  30. 
(See  HOMESTEAD.) 

DECLARATIONS— 

after  an  accident,  not  part  of  res  gestae,  543. 

DEDICATION— 

of  land,  463,  467. 

DEFENDANT— 

sued  for  injury  cannot  condone  by  championing  public  rights 
because  of  apparent  contributory  negligence  of  plaintiff,  220. 
(See  CONTBIBUTOBY  NEGLIGENCE.) 

DIEDRICH  v.  N.  W.  U.  RY.— 
case  of,  462. 

prefatory  note,  462,  463. 
facts  in,  462,  463. 

propositions  of  law  decided,  464-466. 
opinion  in,  466. 
cases  citing,  483. 
authorities  collected,  483,  484. 

DIXON,  CHIEF  JUSTICE— 
biographical  sketch  of,  1. 

DOMINENT  AND  SERVIENT  TENEMENTS— 
as  regards  surface  water,  203-205. 
as  regards  improving  property,  208. 

DORSET  v.  THE  P.  &  C.  CONSTRUCTION  CO.— 
case  of,  502. 
prefatory  note,  502. 
facts  in,  502. 


Index. 

DORSET  v.  THE  P.  &  C.  CONSTRUCTION  CO.— cont 
propositions  of  law  decided,  503,  504. 
opinion  in,  504. 
cases  citing,  513,  514. 
authorities,  513,  514. 

DRED  SCOTT  CASE,  96. 

DUE  CARE— 

obligation  of,  by  railroads,  158. 

DWELLING  HOUSE— 

has  a  definite  meaning,  14. 

sometimes  confused  with  homestead,  16. 

distinguished  from  homestead,  17. 

ordinary  meaning  of,  17. 

is  not  every  place  used  as  a  place  of  abode,  18. 

not  synonymous  with  "residence,"  18. 

could  a  steamboat  be  a,  18. 

store  construed  to  be  because  people  live  there,  18,  19. 

principal  and  incidental  use,  19,  20,  25. 

inconsistently  construed  by  Wisconsin  court,  19. 

absurdity  attached  to  meaning  of,  21. 

generally  means  an  entire  building,  25. 

homestead  preserved  by  use  of  small  part  of  building,  28. 

E. 

EMBANKMENT— 

as  distinguished  from  pier,  482. 

EMINENT  DOMAIN— 

railroads  entrusted  with  right  of,  334. 
comment  on,  336. 

EMPLOYEE— 

rule  as  to  risk  from  collateral  structures,  506. 
having  actual  notice  when  not  negligent,  507. 

EQUITY— 

jurisdiction  to  enjoin  abuse  of  corporate  franchises,  285. 

admitted  in  England  and  the  United  States,  309. 
interferes  with  private  suits,  when,  289,  290. 
general  grounds  of  jurisdiction  in  favor  of  private  persons, 

291,  292. 

has  twofold  jurisdiction,  291. 

has  jurisdiction  to  enjoin  private  wrong,  296,  297. 
application  for  injunction  on  ground  of  particular  injury,  298. 


Index.  590 

EQUITY— cont. 

information  against  municipal  corporation,  308. 

no  jurisdiction  to  enjoin  corporate  violations  in  New  York, 

313,  315. 

constitutional  guaranty  to  cases  in  equity,  316. 
he  who  seeks,  etc.  (see  MAXIMS). 
(See   CHANCERY   COUBT;    INFOBMATION;    MUNICIPAL   COBPOBA- 

TIONS.) 

EVIDENCE— 

preponderance  of,  in  civil  cases,  547. 

beyond  reasonable  doubt  in  criminal  cases,  547. 

EXCEPTION— 

to  charge  to  jury,  when  taken,  197. 
ex  turpi  causa,  etc.  (see  MAXIMS). 
ex  turpi  contractu,  etc.  (see  MAXIMS). 

F. 

FEDERAL  COURT— 

suit  removed  to  by  insurance  company  contrary  to  agree- 
ment, 234. 

jurisdiction  of  suits  between  citizens  of  different  states,  235. 

takes  no  jurisdiction  of  common-law  crimes,  533. 

cannot  make  conditions  for  business  of  foreign  corporations, 
429. 

no  jurisdiction  to  bind  a  state,  438. 

jurisdiction  where  state  cannot  be  made  a  party,  450,  451. 
review  of  doctrine,  452—457. 

jurisdiction  over  state  officer  sued  in  official  capacity,  450,  451. 

cannot  bind  state  at  suit  of  private  party,  456. 

cannot  bind  state  by  binding  state  officer,  456. 

cannot  enjoin  a  state  in  a  state  matter,  456,  457. 

PEE — 

of  navigable  waters,  etc.,  469, 
(See  TITLE;  NAVIGABLE  WATEBS.) 

FENCE — 

failure  of  railroad  to,  .561-567. 

railroads  held  to  high  degree  of  diligence  in  maintaining, 

568. 
(See  CONTBIBUTOBY  NEGLIGENCE;  LIABILITY;  RAILED  ADS.) 

FIRE— 

caused  by  fire  from  a  locomotive,  149,  174. 
insurance  (see  INSTJBANCE). 


591  Index. 

FOREIGN  CORPORATIONS— 

must  fulfill  required  conditions  to  do  business  in  a  state, 

234,  240,  425. 
waiver  of  right  of  removal  to  federal  court,  236,  237,  239. 

when  must  abstain  from  federal  courts,  417. 
may  waive  any  right  of  a  civil  nature,  237. 
subject  to  same  conditions  as  domestic  corporations,  241,  242. 
derives  power  to  do  business  from  legislature,  241,  242. 
subject  to  state  laws,  458. 
(See  COBPOBATIONS.) 

FOX  RIVER— 

navigability  of,  as  matter  of  law,  241-243. 
held  not  to  be  public  navigable  water,  242. 

FRANCHISE— 

binds  both  parties,  359. 
is  gwasi-property,  73. 
(See  CHARTEB.) 

FUGITIVE  SLAVE— 

power  of  congress  to  legislate  on  subject  of,  73,  74. 
right  to  trial  by  jury  before  given  up,  73. 
(See  ABLEMAN  v.  BOOTH.) 

G. 

"GLOVER  RESCUE"  (see  ABLEMAN  v.  BOOTH). 
"GRANGER  LAWS,"  382. 

H. 

HABEAS  CORPUS  (see  WRIT). 
HASBROUCK  v.  CITY  OF  MILWAUKEE— 

case  of,  126. 

prefatory  note,  126. 

facts  in,  126-128. 

propositions  of  law  decided,  127. 

opinion  in,  127. 

cases  citing,  143,  144. 

authorities  collected,  143,  144. 

HIGHWAY— 

when  insufficient,  to  be  charged  city  must  have  notice,  542. 
when  unsafe  as  matter  of  law,  543,  544. 
whole  surface  must  be  reasonably  safe,  544. 
defective  bridge  causing  injury  to  plaintiff,  215,  218. 


Index.  592 

HIGHWAY— cont. 

violation  of  ordinance  as  to  traveling  in  connection  with  de- 
fective bridge,  226. 

insufficiency  of,  town  presumed  to  have  notice  of,  563. 

(See  CONTBIBUTOBY  NEGLIGENCE.) 
HOME  (see  DWELLING  HOUSE). 
HOMESTEAD— 

has  a  definite  meaning,  14. 

is  land  on  which  house  stands,  16. 

sometimes  includes  house  and  land,  16. 

confounded  with  "abode,"  "house,"  etc.,  16. 

distinguished  from  dwelling  house,  17. 

harshness  of  ordinary  doctrine,  when  immaterial,  22. 
loose  construction  in  Wisconsin,  22,  23. 
opens  door  to  fraud  in  Wisconsin,  22,  23. 
is  a  disabling  act  in  Wisconsin,  24. 

is  designed  to  be  a  home  not  a  source  of  revenue,  22,  23. 

is  an  act  in  derogation  of  private  rights,  24. 

doctrine  of  in  Iowa,  25. 

doctrine  of  principal  use,  8,  19,  20,  25,  27. 

no  proof  of  selection  by  debtor  in  Wisconsin,  26. 
necessary  in  Michigan,  26. 

in  a  building  principally  used  as  a  hotel,  26. 

doctrine  in  federal  court,  29. 

limitation  on  in  a  town  in  Wisconsin,  30. 

limitation  on  in  agricultural  lands,  31. 

defined  by  horizontal  lines,  29. 

denned  by  perpendicular  lines,  30. 

limit  on  value,  in  Wisconsin,  31. 

(See  DWELLING  HOUSE.) 
HOUSE  (see  DWELLING  HOUSE). 
HOYT  v.  HUDSON— 

case  of,  202. 

prefatory  note,  202. 

facts  in,  202,  207. 

propositions  of  law  decided,  202,  203. 

opinion  in,  203. 

cases  citing,  213,  214. 

authorities  collected,  213,  214. 

I. 

IGNORANTIA  LEGIS,  ETC.  (see  MAXIMS). 
IMMUNITY— 

from  criminal  proceedings,  515. 

(See  INTERNAL  REVENUE.) 


Index. 

IMPAIRMENT— 

of  obligation  of  contract,  58,  59. 
prohibition  by  constitution,  59. 

(See  CONSTITUTION;  CONTEACT.) 
IMPRISONMENT— 

for  debt  abolished,  221. 
INDIANA  (see  CONSTITUTION). 
INFANT— 

straying  from  unfenced  land  onto  railroad,  567. 

(See  RAILROAD.) 

INFORMATION— 

remedy  by  in  United  States,  299. 

against  municipal  corporation,  308. 

deprives  defendant  of  no  legal  right,  316,  317. 

of  attorney  general,  equivalent  to  bill  in  chancery,  363. 

in  nature  of  quo  icarranto,  no  bar  to  one  for  injunction,  366. 

(See  JURISDICTION.) 
INJUNCTION— 

not  merely  surplusage  in  constitution,  276. 

given  to  supreme  court  as  an  equitable  writ,  277. 

is  complementary  to  writ  of  mandamus,  281. 

frequently  mandatory,  281. 

jurisdiction  of  (see  JURISDICTION). 

is  a  gttcm-prerogative  writ,  282-284. 

borrowed  from  Roman  law,  282. 

remedy  by  in  private  suits,  296. 

for  violation  of  corporate  franchise,  285. 

against  abuse  of  corporate  powers  denied  In  New  York,  SIS- 
SIS, 
rests  on  dictum  (see  EQUITY),  313. 

gwasi-prerogative  in  Wisconsin,  315,  316. 

will  not  go  upon  unverified  information,  363,  364. 

in  discretion  of  court  to  grant,  365,  366. 

to  restrain  illegal  tax,  497-499. 

stops  tax  sale  on  improper  assessment,  39. 

(See  WRIT.) 

IN  PARI  DELICTO,  ETC.  (see  MAXIMS). 

INSURABLE   INTEREST— 
in  property  not  in  esse,  405. 
is  sui  generis,  409. 
early  rule  as  to,  408,  409. 
present  use  of,  409,  410. 
latitude  of,  409-411. 

38 


Index.  594 

INSURABLE  INTEREST— cont 

in  thing  insured  at  time  of  insurance,  410. 

may  be  in  posse  in  a  thing  in  posse,  410-414. 

hard  to  distinguish  from  expectation,  410. 

is  an  "interest  of  some  kind  in  something,"  410. 

in  thing  insured,  test  of  wager  policy,  411. 

not  required  in  some  policies,  412,  413* 

at  time  of  commencement  of  risk,  413. 

at  time  of  insurance,  414,  415. 

exceptions  broader  than  rule  as  to,  416. 

INSURANCE— 

company  must  fulfill  condition  for  business  in  foreign  state, 

234. 

of  steamboat,  242. 
wager  policies,  405,  406. 
upheld  for  indemnity,  void  for  gaming,  406. 
gaming  character  of  marine  policy,  405-407. 
gaming  character  of  fire  policy  limited,  406,  407. 
gaming,  unlawful,  408. 
law  of  changed  with  usage  of  life,  412. 
of  goods  not  yet  bought,  413. 
'     of  grain  in  posse,  414. 

on  stocks  of  merchants,  414. 

fire,  on  time  by  open  policy,  415. 

company,  right  to  do  business  without  a  license,  422. 

company  risks  quo  warranto  by  putting  in  defense  of  wager 

in  action  on  their  policies,  405. 
license  of  company,  when  revokable,  422. 
company  has  election  to  accept  license  cum  onere,  424. 
conditions  of  doing  business  in  Wisconsin,  417,  418,  436. 
foreign  company  may  be  compelled  to  abstain  from  federal 

courts,  418. 
(See  COEPOEATION ;  POLICY.) 

INTERNAL  REVENUE  LAW— 

secretary  of  treasury  may  compound  offenses  under,  530. 

certain  sections  construed,  530,  531. 

a  system  of  "penalties  and  forfeitures,"  533. 

powers  of  revenue  officers  to  compound  offenses,  533,  534. 

immorality  of,  535. 

dirty  work  not  imposed  on  the  bar,  537. 

palliates  composition  of  offenses,  538. 

(See  OFFENSES.) 

IOWA— 

special  laws,  when  prohibited  by  constitution,  327. 


Index. 
J. 

JANESVILLE— 

act  incorporating  city  of,  36,  37. 
JUDGMENT— 

reversible  on  evasive  verdict,  511,  512. 

not  always  part  of  remedy  in  a  civil  action,  62. 
JUDICIARY  ACT— 

comment  of  Chancellor  Kent  on,  89. 
JURISDICTION— 

of  supreme  court  to  entertain  informations,  272,  284,  315. 

original,  supreme  court  of  Wisconsin,  272. 

in  cases  of  injunction,  272. 

of  writs,  274. 

in  case  of  common-law  writs  taken  by  supreme  court,  276. 

of  supreme  court,  both  legal  and  equitable,  278. 

original,  given  for  one  general  purpose,  278. 

general  grants  of,  278. 

of  supreme  court,  original  in  cases  affecting  state  sovereignty, 

279. 
original  in  cases  of  public  rights,  279,  280. 

of  injunction,  appellate  in  private  controversies,  280. 

of.  circuit  court  of  Wisconsin,  243. 

of  injunction,  excluded  in  private  controversies,  281. 

of  injunction,  to  review  tax  assessment,  497. 

where  equitable  in  case  of  writs,  275. 

to  entertain  informations,  independent  of  legal  remedy,  285. 

of  chancery  court  of  England,  286. 

of  public  nuisance,  290. 

to  enjoin  abuse  of  corporate  powers,  denied  in  New  York,  SIS- 
SIS. 

of  suits  between  citizens  of  different  states,  235. 

of  ordinary  courts,  not  ousted  by  contract  of  parties,  427. 

of    federal    courts    where    state    cannot    be    made    a    party, 
449,  450. 

of  federal  courts  where  state  officer  only  nominal  party,  450. 

of  circuit  court  to  enjoin  a  state  offcer,  452. 

of  circuit  court  to  make  a  state  a  party,  452. 

(See  CHANCERY  COUBT;   EQUITY;   PUBLIC  NUISANCE;   WBITS). 

JURY— 

fixes  amount  of  damages,  397. 
decides  questions  of  custom,  505. 

decides  extent  of  employee's  knowledge  of  dangerous  struc- 
tures on  a  railroad,  509. 


Index.  596 

JURY— cont 

finds  fact  of  negligence,  509. 

may  find  negligence  from  condition  of  railroad's  right  of  way, 

148. 
finds  negligence  with  respect  to  property  destroyed,  196. 

K. 

KELLOGG  v.  C.  &  N.  W.  RY.— 
case  of,  145. 
prefatory  note,  145. 
facts  in,  149. 

propositions  of  law  decided,  146-148. 
opinion  in,  148. 
cases  citing,  198,  199. 
authorities  collected,  197-201. 

KNOWLEDGE— 

of  collateral  structures  on  a  railroad,  when  immaterial,  507, 
508,  510,  511,  512. 

KNOWLTON  v.  SUPRS.  OF  ROCK  COUNTY— 
case  of,  33. 
prefatory  note,  33. 
facts  in,  37-39. 

propositions  of  law  decided,  34. 
opinion  in,  36. 
cases  citing,  48,  49. 
authorities  collected,  48-50. 

L. 

LAND— 

dedication  of,  463,  467. 

LAW— 

remedial,  how  may  be  varied  by  legislature,  38. 
affecting  sale,  subsequent  to  time  of  mortgage,  62,  63. 
specifying  sum  at  sale,  subsequent  to  time  of  mortgage,  63. 
withdrawing  state  deposits  from  bank  after  insolvency,  64. 
what  violation  of  on  part  of  plaintiff  will  leave  him  helpless 

in  defendant's  hands,  226,  227. 
(See  CONTBIBUTOBY  NEGLIGENCE;  SUNDAY  LAW.) 

LAWYER— 

duties  of,  527-529. 

(See  INTEBNAL  REVENTTE.) 


597  Index. 

LEGISLATURE— 

exemption  of  entire  building  never  intended  as  homestead 
when  small  part  only  occupied,  25. 

power  to  amend  charters  by  special  acts,  327. 

act  of,  when  a  contract,  330. 

is  judge  of  nature  of  an  alteration  under  reserve  power,  345. 

judge  of  fairness  of  statute,  349. 

power  to  regulate  tolls,  350,  359,  360. 

power  to  ratify  an  unsanctioned  contract  by  a  corporation, 
130. 

may  ratify  transfer  of  franchise  by  railroads,  133. 

power  to  control  state  policy  with  regard  to  corporations,  133. 

power  to  act  retrospectively,  135,  136. 

cannot  deprive  foreign  corporation  of  right  of  removal,  235. 

has  power  to  impose  conditions  on  foreign  corporations,  240. 

confers  authority  on  foreign  corporations  to  do  business  in 
state,  241,  242. 

power  as  to  remedial  laws,  58-61,  65. 

may  enact  statutes  of  limitations  cutting  off  remedies,  61. 

may  make  provisions  for  recordation  of  instruments,  61. 

general  rule  as  to  power  of,  61. 

difficulty  of  application  of  rule  in  particular  cases,  61. 

must  leave  substantial  remedy  when  altering,  64,  65. 

cannot  impair  creditor's  rights,  65. 

limit  to  power  to  vary  remedies,  65. 

power  as  regards  non-uniformity  of  taxation  of  similar  prop- 
erty, 40. 

power  to  tax  when  discretionary,  41. 

power  to  tax,  restricted  by  constitution,  41. 

makes  different  rules  of  taxation  by  classification  of  prop- 
erty, 44,  45. 

seldom  influenced  by  individuals,  often  by  corporations,  46. 

power  to  wholly  exempt  from  taxation  is  not  power  to  par- 
tially exempt,  46. 

merely  has  power  to  "prescribe"  property  to  be  taxed,  46,  47. 

cannot   divest  municipal   corporation  of  property,   109,   112, 
113,  116,  117,  121. 

can  modify  public  corporation  to  certain  extent,  110,  116. 

cannot  create  a  debt  from  one  person  to  another,  118. 

as    trustee   of   property   of   municipal   corporation,    118-120. 

must  have  permission  of  inhabitants  to  divest  property  of 
municipal  corporation,  121. 

need  not  notify  corporation  of  revocation  of  license,  423. 

(See   CONTRACT;    CONSTITUTION;    COEPOBATIONS;    INSURANCE; 
RAILROADS;  RESERVE  POWER.) 


Index.  598 

LIABILITY— 

of  individuals  for  placing  animals  on  railroad,  559. 
rule  of  absolute,  as  regards  railroad  fencing,  561-565. 

distinguished,  563. 

affirmed,  565,  566. 

overruled,  569,  572. 
(See  ACTIONS;  RAILBOADS;   CONTBIBTJTOBY  NEGLIGENCE.) 

LICENSE— 

to  corporations,  revocable  in  legislative  discretion,  423., 
at  election  of  corporation  to  accept  cum  onere,  424. 
granting  and  revocation  of,  ministerial  functions,  424. 
power  of  secretary  of  state  to  grant,  424. 
fee  distinguished  from  direct  tax  on  property,  50. 
(See  COBPOBATION;  INSUBANCE;  LEGISLATUBE.) 

M 

MALICE  (see  DAMAGES). 
MANDAMUS  (see  WBTT). 

MARRIAGE— 

how  defective  celebration  is  cured,  140. 

MARSH  v.  SUPRS.  OF  CLARK  COUNTY— 
case  of,  485. 
prefatory  note,  485. 
facts  in,  485. 

propositions  of  law  decided,  486. 
opinion  in,  487. 
cases  citing,  500. 
authorities  collected,  500,  501. 

MASTER  AND  SERVANT— 

how  former's  right  of  action  defeated  by  contributory  negli- 
gence of  latter,  549. 

MAXIMS— 

ampliare  jurisdictionem,  440. 

causa  proxima  non  remota  spectatur,  159,  167,  168,  187,  188. 

controlled  by  succession  of  events,  123. 
See  PBOXIMATE  CAUSE.) 
otnitas  inter  communitates,  536. 
copulatio  verborum,  etc.,  280. 
ex  turpi  causa  non  oritur  actio,  220. 
ex  turpi  contractu  non  oritur  actio,  536. 
ignorantia  legis  neminem  excusat,  491. 


599  Index. 

MAXIMS— cont.  , 

non  nostrum  tantas  componere  litas,  535. 
sic  utero  tuo,  etc.,  perversion  of,  154. 
noscitur  a  sociis,  280. 
quod  quique  tanetur  scire,  491. 
in  pari  delicto  potior  est  conditio  defendentis,  218. 

MENTAL  SUFFERING  (see  DAMAGES). 

MILWAUKEE— 

plot  of  city,  construction,  466,  467. 

original  incorporation  of,  122. 

charter  of,  presumption  of  grant,  123. 

(See  TOWN  OF  MILWAUKEE  v.  CITY  OF  MILWAUKEE.) 

MORSE  v.  INSURANCE  COMPANY— 
case  of,  232. 
prefatory  note,  232. 
facts  in,  232,  244,  245. 
propositions  of  law  decided,  233. 
opinion  in,  233. 
cases  citing,  245. 
authorities  collected,  244,  245. 

MORTGAGE— 

law  forbidding  sale  in  absence  of  specified  bid,  63. 

MUNICIPAL  CORPORATION— 
information  against,  308. 

power  to  engage  in  internal  improvements,  127,  128. 
power  to  levy  taxes  for  internal  improvements,  128,  129. 
power  to  engage  in  internal  improvements  not  mere  matter 

of  public  policy,  133,  134. 

not  liable  to  private  action  for  damages  from  grading  151,  152. 
is  medium  through  which  national  government  acts,  42. 
governmental  powers  dedicated  to,  109.         , 
as  a  civil  institution,  110,  115. 
as  an  ideal  being  holding  property,  110,  115. 
property  rights  same  as  those  of  private  corporation,  111. 
in  its  governmental  capacity  liable  to  be  changed,  110. 
vested  property  rights  not  subject  to  legislative  control,  110. 
legislative  control  of  property  on  repeal  of  charter,  114. 
may  be  regulated  by  legislature  when  public  in  strictest  sense, 

120. 

at  all  times  subject  to  legislative  modification,  109. 
cannot  be  divested  of  rights  without  it's  assent,  109. 


Index.  600 

MUNICIPAL  CORPORATION— cont 

property  rights  may  be  modified  by  legislature,  110,  116,  120. 

legislative  control  of,  in  Vermont,  119,  120. 

legislative  control  of,  in  Maine,  120. 

legislative  control  of,  in  Pennsylvania,  121. 
definition  in  strictest  sense,  120. 
(See  CORPORATION;  LEGISLATURE;  TOWN.) 

MUNICIPALITY— 

bound  at  it's  peril  to  keep  highways  in  repair,  543. 
(See  MUNICIPAL  CORPORATION.) 

N. 
NAME— 

change  immaterial  if  corporation  can  be  identified,  322. 

change  of,  a  technical  objection,  322,  323. 

need  merely  be  sufficient  to  gather  legislative  intent,  323. 

NAVIGABLE  WATERS— 

right  of  owner  of  bank  to  construct  piers  into  shoal,  469. 

public  title  subordinate  to  such  right,  470. 
meaning  at  common  law,  470. 
are  waters  capable  of  navigation,  471. 
title  of  bed  of  does  not  depend  on  title  to  bank,  472. 
piers  to  point  of  navigability,  472. 

public  use  of  co-extensive  with  fee,  regardless  of  shoals,  474. 
state  rule  as  to,  477. 

in  Vermont,  no  title  to  bed  of  lake  beyond  shore,  478. 
in  Michigan,  title  usque  ad  medium  fillium  aquae,  479. 
permissive  private  intrusion  upon,  480. 

NAVIGATION— 

obstruction  of,  469. 

NEGLIGENCE— 

in  having  dangerous  structures  too  near  railroad  track,  504, 

505. 

contributory  (see  CONTRIBUTORY  NEGLIGENCE),  508. 
a  conclusion  of  fact  to  be  drawn  by  the  jury,  508. 
at  one  time  may  not  be  negligence  at  another,  509. 
may  be  found  by  jury  from  condition  of  railroad's  right  of 

way,  148,  162,  163. 

when  presence  of  houses  near  track  constitutes,  154,  155. 
person  not  bound  to  anticipate  all  dangers  from  another's, 

164,  165. 
distinction  between  dangers  arising  from,  166,  167. 


€01  Index. 

NEGLIGENCE— cont. 

when  master  responsible  for  servant's,  182. 

liability  continues  as  long  as  mischief  is  due  to,  189. 

with  respect  to  property  destroyed,  found  by  jury,  196. 

of  driver  of  vehicle  attributed  to  occupant,  546. 

of  one  in  joint  expedition  attributable  to  all,  550. 

not  admitting  of  doubt  is  question  of  law  for  the  court,  575. 

admitting  of  doubt  is  question  for  the  jury,  575. 

denned,  575. 

question  of,  generally  a  mixed  one  of  law  and  fact,  576. 

general  rule  of  cannot  be  established  by  the  courts,  576. 

(See  CONTBIBUTOBY  NEGLIGENCE;  RALLBOAD.) 

NON-NAVIGABLE  WATERS  (see  NAVIGABLE). 
NOTICE— 

to  corporation  of  revocation  of  license,  not  necessary,  423, 

(See  COBPOBATIONS;  LEGISLATIVE.) 

NUISANCE— 

jurisdiction  of,  290. 

(See  JURISDICTION;  PUBLIC  NUISANCE.) 

0. 

OFFENSES— 

discussion  of  composition  of,  532-534. 

federal  statute  compounding,  533,  534. 

against  United  States  are  statutory,  533. 

powers  of  internal  revenue  officers  to  compound,  534,  535. 

provision  for  compounding  is  immoral,  534. 

assent  of  attorney  general  necessary  to  compound,  537. 

unprofessional  for  lawyer  to  advise  composition,  538. 

(See  INTEBNAL  REVENUE.) 

OFFICER— 

of  state,  sued  in  official  capacity,  449,  450. 
f  state,  sued  where  state  cannot  be  made  a  party,  449,  450. 
of  state,  bound  to  obey  state  authority,  458. 

ORIGINAL  JURISDICTION   (see  JUBISDICTION). 

P. 

PAROL  EVIDENCE— 

inadmissible  to  vary  recorded  plot,  467. 

PARISH— 

original  one  in  town  gets  original  meeting-house,  116. 


Index. 

PASSENGERS— 

bound  to  submit  to  regulations  of  carrier,  551,  552. 
(See  RAILBOADS.) 

PENALTIES—  i 

against  railroad  given  upon  default  to  fence,  559,  560. 

PHELPS  v.  ROONEY— 
case  of,  11. 

prefatory  note,  11,  12. 
facts  in,  11,  12. 
propositions  discussed  in  Chief  Justice  Dixon's   dissenting 

opinion,  12,  13. 
opinion  in,  14. 
authorities  collected,  26-32. 

PIERS— 

extensions  of,  when  pourprestures,  477. 

extensions  of,  to  increase  possession  not  justifiable,  473-475. 

when  not  in  aid  of  navigation,  unlawful,  477. 

necessity  of,  475,  476,  477,  478. 

(See  NAVIGABLE  WATEBS.) 

POLICE  POWER— 

as  regards  chapter  341  of  1874,  320. 
limit  to,  362. 

POLICY— 

gaming,  405,  406. 

interest  and  wager,  distinguished,  406. 

in  marine  insurance,  406. 

test  of  wager,  411. 

required  by  convenience  of  business  to  be  open,  412. 

(See  INTERNAL  REVENUE;  OFFENSES.) 

POWER— 

to  tax,  exercised  according  to  uniform  rule,  487. 
(See  RESERVE  POWER.) 

PRESUMPTION— 

when  conclusive,  generally  relates  to  matter  of  law,  546. 

PRIDEAUX  v.  CITY  OF  MINERAL  POINT— 

case  of,  541. 

facts  in,  541,  542. 

propositions  of  law  decided,  541,  542. 

opinion  in,  542. 

cases  citing,  553--5S5. 

authorities  collected,  553-556. 


Index. 

PRINCIPAL— 

when  liable  for  misconduct  of  agent,  386. 
(See  RESPONDEAT  SUPEBIOE.) 

PRINCIPAL  USE— 

doctrine  of,  as  regards  homestead,  18-20,  25,  27. 
as  hotel,  small  part  used  as  residence,  27. 

is  law  in  some  states,  27. 
(See  HOMESTEAD;  DWELLING  HOUSE.) 

PRIVILEGES— 

theory  of  our  government  contrary  to  granting,  41. 

PROCEEDINGS— 

against  railroads  and  canal  companies,  summary,  286,  287. 

PROFESSIONAL  ETHICS,  527-529. 

PROPERTY — 

private  taken  for  public  use,  337,  338. 

rights  same  in  public  as  in  private  corporations,  112. 

every  man  entitled  to  proper  use  of  his  own,  153. 

PROOF— 

burden  of,  in  cases  of  contributory  negligence,  545. 
(See  COXTBIBUTOBY  NEGLIGENCE.) 

PROXIMATE  CAUSE— 

does  not  depend  on  mere  distance,  156. 

when  natural  and  ordinary  means  for  spread  of  fire  at  hand, 

156,  157. 

as  affected  by  wind,  157. 
anamolous  view  in  New  York  and  Pennsylvania,  151,  158,  159,. 

168-171,  175-177,  188,  201. 
wrong-doer  not  liable  for  remote  consequences   of  act, 

175-177. 

it  is  illogical,  179. 

leading  case  in  New  York,  the  Ryan  Case,  159,  160. 
criticisms  of  the  Ryan  Case,  179-185. 
rule  modified,  184. 

position  of  Pensylvania  court,  192,  193. 
controlled  by  succession  of  events,  159,  174. 

disturbed  by  independent  cause,   172,   195. 
not  diturbed  by  incidental  cause,  172. 
proximate  effects,  161. 

dry  grass  on  railroad's  right  of  way  as  cause  of  fire,  167,  168r 
185-187. 


Index.  604 

PROXIMATE  CAUSE— cont. 

distinction  between  necessary  and  ordinary  results  of  first 

cause,  170,  171. 

sparks  from  a  locomotive,  174. 
English  doctrine,  185-187. 
natural  consequences,  187,  191-193. 
distinction  between  different  rules  of,  188,  189,  191. 
ancient  doctrine  of  common  law  as  to,  188,  189. 
number  of  steps  immaterial,  193,  194. 
ruin  of  creditor  as  result  of  debtor's  failure  to  pay,  194. 
as  affected  by  ordinary  and  extraordinary  circumstances,  195. 
what  constitutes,  197,  198. 

PUBLIC  CORPORATION  (see  COEPOBATIONS;  MUNICIPAL  COBPOBA- 
TION). 

PUBLIC  NUISANCE— 

what  constitutes,  299,  300. 

subject  of  criminal  jurisdiction,  301,  302. 

jurisdiction  by  indictment,  300. 

view  of  Michigan  court,  303. 

view  of  Pennsylvania  court,  303,  307-309. 

view  of  New  Jersey  court,  306. 

view  of  Missouri  court,  308. 

view  of  Massachusetts  court,  310-312. 

view  of  New  York  court,  301,  312-315. 

view  of  United  States  supreme  court,  303. 

damage  not  essential  to  abate,  304,  305. 

(See  EQUITY.) 

PUBLIC  POLICY— 

contracts  contrary  to  thrown  out  of  court,  519-535. 

lex  fori  determines  validity  of  contract  against,  527,  536. 

sanction  of  federal  court  does  not  influence,  527. 

rulings  in  regard  to  cannot  be  imposed  by  one  jurisdiction  on 

another,  537. 
(See  INTEBNAL  REVENUE;  OFFENSES.) 

PUBLIC  PROSECUTOR— 

a  gwasi-judicial  officer,  525. 

has  no  authority  to  make  agreement  with  accomplice,  521, 

524-526. 

large  official  discretion  of,  525,  526; 
should  not  accept  private  retainer,  526. 
(See  ACCOMPLICE;  INTEBNAL  REVENUE;  OFFENSES.) 

PUBLICI  JURIS  (see  WBIT). 


605  Index. 

Q. 

QUASI-PREROGATIVE  WRIT  (see  INJUNCTION;  WBIT). 

QUO  WARRANTO  (see  WBIT). 

QUOD  QUISQUE  TENETUR  SCIRE   (see  MAXIMS). 

B. 

RAILWAY  ACT  OF  ENGLAND,  287. 

RAILWAY  AND  CANAL  TRAFFIC  ACT  OF  ENGLAND,  286. 

RAILWAY  COMMISSION— 

under  rate  act  of  1874  in  Wisconsin,  320. 

RAILROADS— 

discretion  to  take  land,  305. 

strict  construction  of  charters,  305. 

provisions  as  to  government  of  in  Wisconsin,  320. 

classes  under  rate  act  of  1874,  319,  322. 

remedy  for  abuses  in  legislation,  349. 

importance  of,  350. 

controlled  their  own  rates  before  rate  act,  352. 

act  through  servants,  387. 

duties  to  passengers,  387,  388. 

extent  of  duty  to  female  passengers,  388,  391. 

must  protect  against  injury  to  feelings,  389. 
contract  is  to  protect  passenger  against  all  the  world,  390,  391. 
contract  of  carriage  is  contract  of  road,  not  agent,  390,  391. 
negligent  in  erecting  collateral  structures  too  near  track,  504, 

505. 
not  always  excused  by  actual  notice  of  danger  to  employee, 

507. 

transfer  of  franchises  afterwards  ratified,  133,  134. 
negligence  may  be  found  from  condition  of  right  of  way,  148, 

165. 

keep  dry  grass  on  right  of  way  at  their  peril,  163,  167-169. 
liability  for  negligence  to  volunteer  passenger,  550,  551. 
passengers  must  submit  to  regulations,  551,  552. 
liability  of  for  failure  to  fence,  557-565. 

contributory  negligence  defeats  action  for  injury  caused 

by,  564. 
rule  of  absolute  liability  affirmed,  565,  566. 

rule  of  absolute  liability  overruled,  572. 

injuries   "caused"   and   "occasioned"   distinguished,   565, 
566. 


Index.  606 

HAILROADS — cont. 

rule  of  absolute  liability  for  not  maintaining  fences,  557-566. 
is  unwise  in  policy,  572. 
New  York  statute,  571. 
Wisconsin  statute,  designed  to  protect  trains  as  much  as 

straying  cattle,  571. 
Wisconsin  statute,  not  designed  to  relieve  owners  from 

care  of  animals,  572. 

duty  to  fence  same  as  duty  of  town  to  maintain  proper  high- 
ways, 562. 

statute  is  absolute,  562. 
failure  to  build  and  failure  to  maintain  distinguished 

563. 

duties  and  liabilities  compared  with  those  of  town,  563. 
defective  highways  "causing"  and  "occasioning"  injuries, 

565,  566. 
held  to  high  degree  of  diligence  in  maintaining  fences,  563, 

568. 

especially  where  no  contributory  negligence,  568,  569. 
all  animals  upon  are  trespassers  except  at  crossings,  562. 
(See  CONTBIBUTOBY  NEGLIGENCE;  COBPOBATIONS;  LIABILITY.) 

RATES— 

right  to  make  not  absolute  under  railroad  franchise,  359. 
as  classified  under  rate  act  of  1874,  319,  321. 
maximum  charge  under  rate  act  of  1874,  320,  321,  328. 
cripple  public  interests  when  too  high,  352.    ' 
power  to  make,  not  part  of  obligation  of  contract,  358. 

RAVINE— 

occasional  flow  of  water,  208. 
legal  qualities  of,  208. 

REASSESSMENT— 

in  case  of  invalid  assessment,  492. 
(See  ASSESSMENT.) 

REDEMPTION— 

mortgagor's  time  of,  lengthened,  62,  63. 

REMEDY— 

at  law,  by  quo  warranto,  285,  286. 

by  writs,  273,  274. 

for  private  wrongs  at  suit  of  private  parties,  296. 

by  information  in  United  States,  299. 

by  existing  laws  is  part  of  obligation  of  contract,  59. 

in  law  for  all  wrongs,  58,  59. 


607  Index. 

REMEDY — cont. 

substantial  one  must  be  left  by  legislature  when   altering, 

60,  65. 

alterations  in  legislative  discretion,  61. 
alterations  passed  on  by  courts,  61. 
how  affected  by  lengthening  of  mortgagor's  time  to  redeem, 

63. 

forms  part  of  obligation  of  contract,  63,  64. 
against  corporations  under  rate  act  of  1874,  319. 
when  a  duty  to  relax,  66. 
time  not  part  of  contract,  66. 

REMOVAL— 

to  federal  court  by  foreign  corporation  Is  a  right,  235. 

legislature  cannot  deprive  foreign  corporation  of  right  of,  235. 

right  of,  is  a  privilege  conferred  by  United  States  constitu- 
tion, 235. 

right  to,  waived  by  foreign  corporations  in  Wisconsin,  236. 

competency  of  foreign  corporation  to  waive,  236,  237,  429. 
distinguished  from  statute  requiring  waiver,  429-431. 

public  policy  of  provisions  requiring  waiver  by  foreign  corpo- 
rations, 431,  432. 

agreement  to  waive  not  illegal,  433. 

(See  FOREIGN  CORPORATIONS.) 

REPEAL— 

constructive,  319. 
(See  ACT.) 

RES  GESTAE— 

what  constitutes,  543. 
(See  DECLARATIONS.) 

RESERVE  POWER— 

important  in  case  of  corporate  charters,  325,  326. 
not  impaired  in  Wisconsin  by  amendment  of  1874,  326. 
prevents  application  of  rule  in  Dartmouth  College  Case,  337. 
occasion  of  its  reservation,  338,  339. 
object  and  historical  origin  of,  341. 
enables  state  to  alter  charters,  342. 

exercise  of,  sanctioned  by  state  and  federal  courts,  342,  343. 
is  a  positive  provision;  how  construed,  345. 
power  to  alter  railroad  charters  under,  344,  345. 
to  alter  distinguished  from  to  repeal,  345,  346. 
power  to  alter  unquestionable,  346,  351. 

contained  in  territorial  charter  to  C.  &  N.  W.  and  St.  Paul 
railroads,  357. 


Index.  60S 

RESERVE  POWERS— cent. 

simply  one  of  repeal  in  territorial  charter,  357. 
effect  on  charter  accepted  and  in  operation,  363. 
(See  LEGISLATURE.) 

RESIDENCE  (see  DWELLING  HOUSE). 

RESPONDEAT  SUPERIOR— 

useless  subtlety  in  application  of  rule  of,  384,  385. 

malice  is  negligence  in  certain  cases  under,  386. 

principal  liable  for  misconduct  of  agent,  386,  389. 

rule  of  damages  under,  treated  as  if  ex  contracts,  386. 

as  applied  to  corporations,  387. 

servant's  negligence,  182. 

(See  MASTER  AND  SERVANT;  NEGLIGENCE.) 

RIGHT— 

to  take  toll  as  an  attribute  of  ownership,  346,  360. 

to  use  one's  property  lawfully  as  one  will,  164. 

of  property  same  in  municipal  and  private  corporations,  112. 

(See  RATES.) 

RIGHT  OF  WAY— 

jury  may  find  negligence  in  railroad  from  condition  of,  148, 

165. 
encumbered  with  dry  grass  evidence  of  negligence,  165,  167- 

169. 
(See  RAILROAD.) 

RIPARIAN  RIGHTS— 

rest  on  title  to  bank,  469,  471. 

of  necessity  to  protect  land  from  water,  470,  473. 

to  bed  of  water,  rests  on  what,  472. 

limitation  of  right  to  intrude  through  shoal  water,  475. 

(See  TITLE.) 
RISK— 

when  assumed  by  employee,  506. 

when  it  begins  in  fire  insurance,  413. 

(See  INSURABLE  INTEREST;  INSURANCE.) 

RYAN,  CHIEF  JUSTICE— 

biographical  sketch  of,  247. 

S. 

SAWYER  v.  DODGE  COUNTY  INSURANCE  CO.— 
case  of,  401. 

prefatory  note,  401,  402. 
facts  in,  401. 


609  Index. 

SAWYER  v.  DODGE  COUNTY  INSURANCE  CO.— cont 
propositions  of  law  decided,  403,  404. 
opinion  in,  404. 
cases  citing,  416. 
authorities  collected,  416. 

SERVANT— 

when  negligence  attributed  to  master,  182. 

(See  MASTEB  AND  SEBVANT;  RESPONDEAT  SUPEBIOB.) 

SERVIENT  HERITAGE  (see  DOMINANT  HEBITAGE). 

SET-OFF — 

not  allowed  In  case  of  tort,  220. 

(See  COXTBIBUTOBY  NEGLIGENCE;  TOBT.) 

SIC  UTERO  TUO,  ETC.  (see  MAXIMS). 

SPARKS— 

from  locomotive,  cause  of  fire,  174. 
(See  PBOXIMATE  CAUSE.) 

STATE— 

right  to  control  territorial  charters,  361. 

relinquishing  right  of  taxation  in  favor  of  corporation,  362, 

363. 

no  right  to  annul  all  acts  of  territorial  legislature,  374. 
preservation  of  prerogatives  of,  422,  423. 
has  right  to  refuse  license  to  foreign  corporations,  429,  430. 
exempt  from  suit  by  a  citizen,  441-443. 

review  of  origin  of  eleventh  amendment,  440-457. 
cannot  be  bound  by  federal  court  at  suit  of  private  party, 

455,  456. 

cannot  be  bound  in  person  of  its  officer,  455,  456. 
can  compel  foreign  corporation  to  abstain  from  federal  court, 

461. 

may  regulate  modes  of  proceeding  in  its  courts,  60,  65. 
can  shorten  period  of  limitation,  61. 
can  regulate  remedies  in  general,  60. 

but  not  to  the  impairment  of  contract,  60. 
(See  FOBEIGN  COBPOBATIONS;  LEGISLATURE;  OFFICER.) 

STATE  v.  DOYLE — 
case  of,  417. 

prefatory  note,  417,  418. 
facts  in,  421,  422. 

39 


Index.  610 

STATE  v.  DOYLE— cont. 

propositions  of  law  decided,  419,  420. 

opinion  in,  421. 

cases  citing,  461. 

authorities  collected,  460,  461. 

STATE'S  EVIDENCE  (see  ACCOMPLICE). 

STATUTE— 

words  of  general  nature  in,  construed  according  to  natural 

import,  15. 
language  in  construed  as  used,  15,  16. 

STOCKHOLDERS— 

rights  affected  by  enjojning  private  corporations,  309. 

STORE— 

one-seventh  used  as  residence,  19. 
(See  DWELLING  HOUSE;  PRINCIPAL  USE.) 

STRUCTURES— 

danger  of,  not  excused  by  custom,  505. 

custom  concerning  danger,  question  for  jury,  504,  505. 

danger  not  justified  by  convenience,  505. 

when  employee  assumes  risk  from,  506. 

railroad  not  excused  by  actual  notice  to  employee,  507,  510. 

(See  NEGLIGENCE;   RAILROADS.) 

SUCCESSION  OF  EVENTS— 
(See  PROXIMATE  CAUSE.) 

SUNDAY  LAW— 

violation  of  as  defense  to  an  action  for  negligence,  215. 
Massachusetts  doctrine  as  to  such  violation  constituting 

a  defense,  216,  217,  230. 
disregard  of  as  constituting  contributory  negligence  on 

part  of  plaintiff,  218,  219. 
presence  at  a  particular  spot  on  Sunday  as  constituting 

contributory  negligence,  222. 
letting  of  horses  on  Sunday  as  constituting  contributory 

negligence,  218. 

violation  immaterial,  unless  a  cause  of  injury,  222. 
doctrine  in  Vermont  as  to  violation  of,  229,  230. 
reversal  in  Vermont,  229,  230. 
reversal  in  Massachusetts,  230. 

SUPREME  COURT— 

has  superintending  control  over  other  state  courts,  278,  279. 
has  oversight  of  rights  of  state  and  people,  279. 


611  Index. 

SUPREME  COURT— cont. 

has  no  discretion  to  withhold  injunction  in  case  piiblici  juris, 

366. 
when  not  bound  by  decision  of  federal  supreme  court,  427, 

435. 
(See  JURISDICTION.) 

SUPREME  COURT  OF  THE  UNITED  STATES— 
appellate  jurisdiction,  73,  81-83. 
decides  constitutionality  of  acts  of  congress,  73. 
appellate  jurisdiction  same  as  original  jurisdiction  of  lower 

courts,  90. 

as  regards  subject-matter,  91. 
should  be  followed  by  state  courts  on  questions  under  United 

States  constitution,  360,  361. 
cannot  compel  state  officer  to  act  officially,  432. 
original  jurisdiction  of,  438. 
controversies  between  states  and  citizens  of  another  state, 

438. 

is  a  court  of  limited  jurisdiction,  439,  440. 
impatient  of  limited  jurisdiction,  440. 
rule  in  state  case  when  state  decisions  vary,  454. 
(See  JUBISDICTION;  STATE.) 

SURFACE  WATER— 

common-law  rule  adopted  in  Wisconsin,  204,  205,  210. 
civil  law  rule  prevails  in  some  states,  204,  210,  211. 
no  legal  right  can  be  claimed,  jure  naturae,  in  flow  of,  205. 
municipalities  have  same  right  to  repel  as  other  proprietors, 

206. 

city  does  not  have  to  remove  when  grading,  208. 
municipality  not  liable  to  private  citizen  for  damage  from, 

209. 

quaere  as  to  common-law  rule  in  a  hilly  region,  209. 
limitation  on  right  to  divert  under  common-law  rule,  210. 
confusion  in  regard  to,  211. 
diversion  of,  210-212. 

SUTTON  v.  TOWN  OF  WAUWATOSA— 
case  of,  215. 
prefatory  note,  215. 
facts  in,  215,  216. 

propositions  of  law  decided,  215,  216. 
opinion  in,  216. 
cases  citing,  228,  229. 
authorities  collected,  228,  231. 


Index.  612 

T. 

TAX 

defined,  487. 

a  liquidated  debt,  487. 

validity  depends  on  what,  487. 

groundwork  of,  includes  a  valid  assessment,  490. 

assessment,  reviewable  in  equity,  497,  498. 

distinguished  from  license  fee,  50. 

(See  ASSESSMENT.) 

TAXATION— 

by  municipality  for  internal  improvements,  127,  128. 

by  municipality,  must  have  legislative  sanction,  129. 

provisions  of  Wisconsin  law,  485. 

two  rates  for  similar  property,  40. 

meaning  in  ordinary  sense,  40. 

defined,  41. 

power  of,  an  essential  attribute  of  government,  41. 

power  of,  in  republics  vested  in  legislature,  41. 

courts  seldom  interfere  with,  41. 

in  discretion  of  legislature,  41,  42. 

should  be  uniform,  42. 

purpose  is  revenue,  42. 

uniformity  is  equality,  43. 

according  to  value,  43. 

legislature  has  power  to  classify  property  for,  44,  45. 

relinquishment  of  right  of,  by  state  to  corporation,  a  contract, 

362,  363. 

different  for  lands  in  village  used  for  agriculture,  37. 
(See  LEGISLATUEE.) 

TECHNICALITIES— 

introduced  by  corporations,  324. 

TERRITORIAL  CHARTER   (see  CHAETEE). 

TESTIMONY— 

of  accomplice,  when  inadmissible,  519,  520. 
(See  ACCOMPLICE.) 

THEFT-BOTE   (see  OFFENSES). 

TITLE— 

to  bed  of  Lake  Michigan,  is  in  the  public,  468. 

of  riparian  owner  on  river  or  stream,  469. 

of  riparian  owner  on  natural  lake  or  pond,  469,  471. 


£13  Index. 

TITLE — cont. 

to  soil  under  water,  469. 

none  to  bed  of  lake  beyond  shore  in  Vermont,  478. 

cannot  be  acquired  by  breakwater  by  private  party,  482. 

TOLLS  (see  RATES). 

TORT— 

cannot  be  set  off  in  an  action,  220. 

(See    CONTRIBUTORY    NEGLIGENCE;    DAMAGES;    LAW;     SUNDAY 
LAW.) 

TOWN— 

cannot  hold  land  outside  of  boundaries,  104. 
under  territorial  government  not  changed  by  state  govern- 
ment, 108. 

power  of  legislature  to  divest  property  of,  108. 
first  parish  of,  gets  what  property,  116. 
originally  a  single  parish,  116. 

erection  of  new  one  as  impairing  rights  of  old  one,  124. 
liability  for  highways  same  as  duty  of  railroad  to  fence,  562. 
statute  is  absolute,  562. 
failure  to  build  and  failure  to  maintain  distinguished, 

563. 
duties  and  liabilities  compared  with  those  of  railroad, 

563. 

presumed  to  have  notice  of  insufficient  highways,  563. 
(See    CONTRIBUTORY    NEGLIGENCE;    CORPORATIONS;    LIABILITY; 
MUNICIPAL  CORPORATIONS;  NEGLIGENCE.) 

TOWN  OF  MILWAUKEE  v.  CITY  OF  MILWAUKEE— 
case  of,  102. 
facts  in,  102-108. 
propositions  of  law  decided,  102. 
opinion  in,  103. 
cases  citing,  125. 
authorities  collected,  125. 

TRESPASS— 

differentiated  from  question  of  contributory  negligence,  561. 
animals  guilty  of  not  outlawed,  574. 

owners  can  recover  of  railroads  under  fence  law  for  in- 
jury to,  574. 

u. 

UNIFORMITY  OF  TAXATION  (see  TAXATION). 
UNITED  STATES  COURTS  (see  FEDERAL). 


Index.  614 

V. 

VERDICT — 

evasive,  ground  of  reversal,  511,  512. 

VON  BAUMBACH  v.  BADE— 
case  of,  51. 
facts  in,  54-56. 

propositions  of  law  decided,  51-53. 
opinion  in,  54. 
cases  citing,  67. 
authorities  collected,  67,  68. 

W. 
WAGER  POLICY  (see  INSURANCE;  POLICY). 

WAIVER— 

of  any  right  of  a  civil  nature  allowable,  237. 

WATER-COURSE— 

distinguished  from  ravine,  206,  207. 

stream  must  usually  flow  in,  206,  207. 

is  something  more -than  mere  surface  drainage,  206,  207. 

legal  qualities  of,  208. 

(See  SUEFACE  WATER.) 

WHARVES  (see  PIEKS). 

WIGHT  v.  RINDSKOPF— 
case  of,  515. 

prefatory  note,  515,  516. 
facts  in,  515,  516. 

propositions  of  law  decided,  516-518. 
opinion  in,  519. 
cases  citing,  540. 
authorities  collected,  540. 

WIND— 

as  affecting  proximate  cause  of  fire,  157. 

WITNESS— 

as  such  can  not  have  an  attorney,  523,  524. 

for  the  state,  523  et  seq. 

professional  advice  can  not  limit  testimony  of,  524. 

(See  ACCOMPLICE.) 


Index. 

WRIT— 

habeas  corpus,  272,  280. 

mandamus,  distinguished  from  others,  272,  281,  313,  314. 

not  in  discretion  of  court  to  withhold,  364-366. 

where  applicable,  423 
Injunction,  281. 
quo  warranto,  272,  286,  313,  314. 

risk  of  by  an  insurance  company,  405. 
certiorari,  272,  273,  283. 
original  and  prerogative,  273. 
remedial,  273. 
equitable  and  legal,  274. 
supreme  court  takes  all  common-law  writs,  276. 

they  imply  jurisdiction  appurtenant  to  them,  278. 
guasi-prerogative,  282. 
in  circuit  courts,  283. 

given  by  constitution,  cannot  be  abolished  by  statute,  367. 
prerogative  issues  only  at  suit  of  state,  422. 
(See  EQUITY;  INJUNCTION.) 


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